The Lord Chancellor: Leave of Absence

Lord Irvine of Lairg: My Lords, before business begins, I take the opportunity to inform the House that I will be undertaking a ministerial visit to the Channel Islands on Monday 7th, Tuesday 8th and Wednesday 9th April. Accordingly, I trust that the House will grant me leave of absence.

NHS: Sports Facilities

Lord Addington: asked Her Majesty's Government:
	What steps they are taking to ensure that primary care trusts, health authorities and National Health Service trusts promote and safeguard facilities for physical activity and sport.

Baroness Andrews: My Lords, primary care trusts have an important role in the delivery of local and effective policies to increase physical activity. They are supported in that by the wider NHS and work with other organisations through local strategic partnerships to ensure the best possible local infrastructure for physical activity and sport.

Lord Addington: My Lords, is it not slightly strange that there is no statutory right of consultation for the NHS in any of its facilities to advise on recreational physical activity, especially when we consider that it often prescribes physical activity as a treatment? Does that not display a considerable lack of joined-up government and imply increased costs in future?

Baroness Andrews: My Lords, the noble Lord is right to say that there is no statutory responsibility, but the NHS is proactively involved in many different ways. For example, 93 per cent of local strategic partnerships, which are responsible for developing local infrastructure, now have the chief executive of the local PCT on the board.
	Another example relates to the sale of school playing fields, which has significantly reduced as a result of the Government's regulations in 1998. We have there seen that the third criterion, which means that community interests must be served, invites the PCT to have a view. Its role may not be statutory, but the PCT can certainly play a role by saying that such open spaces are important for a community for health reasons.

Baroness Billingham: My Lords, can the Minister update us on the impact of the New Opportunities Fund programme—especially its positive effect on promoting sport across all age groups and in all communities? It has been especially successful in that area.

Baroness Andrews: My Lords, sport has been a major priority for the Government and the NOF programme has taken a significant lead. For example, £581 million has been provided for infrastructure and development—school playing fields, sports halls, and so forth—and £300 million has been provided for healthy learning centres, which are a splendid innovation driven by the community. They invite people in to discuss how their health needs can best be met through diet, activity, and so on. My favourite is the out-of-school learning programme, whereby major expansion of after-school and out-of-school activities for young people has been taking place, especially in sport.

Hospitals: Single-Sex Accommodation

Baroness Noakes: asked Her Majesty's Government:
	Why they will not publish the names of National Health Service trusts which have not met the single- sex accommodation standards.

Baroness Andrews: My Lords, the majority of NHS trusts were successful in eliminating mixed-sex accommodation by the target date. More than 98 per cent of wards now meet our guidelines; the remainder will comply once private finance initiative and other building projects are completed. Those projects affect only 2 per cent of 10,000 wards. To name those would give a false impression that the whole trust was not compliant when that is clearly not the case.

Baroness Noakes: My Lords, I thank the Minister for that reply. I remind her that in February 1998, the noble Baroness, Lady Jay, then a health Minister, said:
	"We promised we would end the unacceptable practice of mixed sex hospital accommodation, and we stand by that promise".
	Has not that promise been broken? Have not wards been excluded from the Government's figures on a massive scale by allowing screens and other dubious devices to mask the real picture? Is not that the real reason for not disclosing non-compliant hospitals?

Baroness Andrews: Absolutely not, my Lords; I could not disagree more. The overall target set stated that we should have eliminated 95 per cent of mixed-sex accommodation by December 2002. That meant complying with three standards: single-sex sleeping accommodation, bathroom and toilet facilities, and additional safety for patients who are mentally ill. Our figures now show that 98 per cent of trusts have met the first standard; 93 per cent have met the second; and 95 per cent have met the third. Huge effort has gone into meeting those targets and we are pleased with the result.
	The most important figure I can give the House is that 164 wards out of 10,000 do not meet the guidelines. What constitutes segregation is not flimsy screens but strong segregated facilities which mean that patients are not overheard or overlooked.

Lord Clement-Jones: My Lords, it is now nearly six years since the Government made their pledge on single-sex accommodation. Why is it not now 100 per cent? Successive Ministers have made that pledge. The extra 2 per cent surely cannot be far away. There is confusion about whether the target relates to single-sex wards or single-sex accommodation. Can the Minister clarify that?

Baroness Andrews: My Lords, two big questions have been asked. The first is why we are not now at 100 per cent. Of the 24 trusts that remain outstanding, 22 are involved in major-scale conversion or building programmes. Those take time. We are expecting 97 per cent compliance by April 2004, but a few hospitals have even bigger projects scheduled after that.
	On definitions, we use the term accommodation rather than wards because accommodation involves not just wards but single bedrooms, groups of single bedrooms and mental health units—the whole range. By single sex, we mean proper segregation within all those different forms of accommodation.

Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that it is now well over seven years since I introduced a Bill to the House, which it was good enough to pass through all its stages, to outlaw mixed-sex wards throughout the National Health Service? That has still not been achieved, because, I believe, of resistance within some trusts and hospitals. Even if only 164 wards remain, we should surely be told in what hospitals so that pressure can be brought on the trusts to eliminate them forthwith.

Baroness Andrews: My Lords, it pains me to disagree with the noble Lord, but there is no question of resistance. As I explained, the 164 wards remain mixed sex because of the new build coming on stream. The noble Lord will admit that we have made extremely good progress considering the position on single-sex accommodation that we inherited seven years ago.

Baroness O'Cathain: My Lords, does the Minister not think there is good reason for naming and shaming the national health trusts? The Government name and shame everyone else—schools, et cetera—so why not trusts? I am sure that it would create the impetus whereby there would be only single-sex wards after very few months.

Baroness Andrews: My Lords, as I explained, we do not name and shame because there is no shame attached. Twenty-two trusts are involved in new build conversions and major development programmes, which is something to be proud of. The issue of the remaining wards is not being neglected. Privacy and decency are high priorities. We attempt to provide patients with what they want in different ways, not least by having modern matrons and ward housekeepers. The fact that 164 wards are outstanding is not neglect.

Baroness Gibson of Market Rasen: My Lords, my noble friend mentioned privacy and dignity. Having just come out of hospital, I have heartfelt views on that. Can the Minister say more about what has been happening in relation to privacy and dignity?

Baroness Andrews: My Lords, privacy and dignity do not depend entirely on single-sex accommodation, although it is an important factor. The training given to nurses and the success of the role of the almost 2,000 modern matrons now in place make a difference to the dignity accorded patients. A benchmarking document, The Essence of Care, helps nurses, patients and everyone else on a ward to understand the importance of respecting patients' feelings, their particular concerns and how they wish to be addressed. Standards in that respect are being driven up significantly.

Earl Howe: My Lords, when the noble Lord, Lord Hunt of Kings Heath, announced earlier this year that 98 per cent of NHS trusts met the single-sex accommodation standards, he added the rider that that achievement was in relation to planned admissions. What about unplanned, emergency admissions?

Baroness Andrews: My Lords, we must be realistic. There must be scope in hospitals to manage unplanned admissions and to treat patients quickly and appropriately. The guidelines suggest that when people are admitted on an emergency or unplanned basis they enter admission wards, which are sometimes mixed sex but within 48 hours they must be found single-sex accommodation. If the noble Earl asked any patient to choose between waiting until a bed in a single-sex ward became available and receiving the treatment that they need, I think I know which they would choose.

Baroness Sharples: My Lords, the noble Baroness mentions modern matrons. What is the difference between a modern matron and an old-fashioned matron?

Baroness Andrews: My Lords, I dread the perspicacious questions of the noble Baroness. I think that it is because matrons have been recreated.

The Earl of Listowel: My Lords, what is the current situation as regards adolescent residents in mental health units? To what extent are they divided between sexes?

Baroness Andrews: My Lords, 96 per cent of NHS trusts have met the additional criteria for mentally ill patients. It is very important, particularly for women and young people, that we develop the best possible quality mental health accommodation. A range of issues, including safety, surround the treatment of turbulent and disturbed adolescents. We are making good progress, but it would be good if we hit the 100 per cent target as soon as possible.

Lord Geddes: My Lords, further to the noble Baroness's reply to my noble friend Lady O'Cathain, and accepting, for the sake of the question, that the vast majority of the 2 per cent of mixed-sex wards exist because of massive new building projects—as a former NHS trust member, I understand that—rather than name and shame, would it not be a good thing just to name and give the reason? If that happened, the country would have a fair idea why the 2 per cent were not meeting the target.

Baroness Andrews: My Lords, as I said in my first Answer, it is difficult for people to grasp that such a small number of wards in the 22 trusts are involved. It is too easy to extrapolate that, if a ward is not compliant, the trust has not complied. It is a subtle process.

NHS Waiting Lists

Lord Campbell of Croy: asked Her Majesty's Government:
	What action they are taking to shorten hospital waiting lists and the waiting times for patients on those lists.

Noble Lords: Hear, hear!

Baroness Andrews: My Lords, I am grateful for the encouragement. We have put in place a major programme of investment, modernisation and reform designed to shorten waiting times. As a consequence, by the end of 2005, we will see maximum waiting times of 13 weeks for a first outpatient appointment and six months for inpatient treatment.

Lord Campbell of Croy: My Lords, I thank the noble Baroness for her reply, particularly as she is so busy today. Apart from emergency cases, are patients offered available beds in other establishments, as a press report indicates today, even if they are some distance from their homes?

Baroness Andrews: My Lords, in the case of coronary heart disease, in particular, if there is a possibility of getting the patient into hospital faster, there is a choice scheme, whereby the patient can be offered treatment in a different hospital. I believe that a high proportion of patients make that choice.

Lord Clement-Jones: My Lords, the recent Audit Commission report referred to widespread errors and deliberate misreporting of waiting lists and waiting time figures. The Audit Commission said that there should be an open debate in the NHS about what led to such behaviour, so that lessons could be learnt and measures taken to avoid repetition. What can the Minister say about that? What is the department doing to implement the Audit Commission's recommendation?

Baroness Andrews: My Lords, it is important that we put it in perspective. Three of the 41 hospital trusts on which spot checks were carried out were found to be seriously in default. The Government want to see an end to such situations, and Nigel Crisp described them as reprehensible and unacceptable. I endorse that view. Some other trusts were discovered to have system reporting failures that were essentially technical.
	In the case of the three trusts mentioned, we set up investigations immediately before the report came through. Two reports are still outstanding. There have been suspensions, and some people have resigned. More generally—I stress that the Audit Commission emphasised that its findings did not affect the validity of the aggregate data and said that such figures were robust—we have introduced a code of conduct for managers to make it clear that giving in to any temptation to alter figures will be a serious matter. We are examining ways of supporting better systems, and we have set up a better investigative framework for responding when things go wrong.

Baroness Pitkeathley: My Lords, does my noble friend agree that there is a problem, in trying to get waiting lists and waiting times down, with patients who have admission and appointment dates but do not keep them—the "no shows"? In that regard, does she consider that the Government's programme of informing and empowering patients through the patient and public involvement programme will have an effect on the behaviour of patients?

Baroness Andrews: My Lords, we are already beginning to see that effect. The programme is called "Waiting and Choosing", I believe, and the difference is that patients can decide when they go into hospital; it will be at their convenience. That makes it much less likely that they will cancel. That is a positive step.
	Another positive step is for GPs to develop special interests—for example, skeletal disorders—so that, instead of having to go into the hospital, the patient can be treated at home by the GP. It is not just a question of managing the waiting list more effectively; there must be a range of strategies to support better referral and appointment systems.

Lord Pilkington of Oxenford: My Lords, is the Minister aware that, behind all the rhetoric, the fact in Somerset, where I come from, is that elderly people needing a hip replacement must wait nine months to a year? They are crippled. In spite of all that the Minister said, I do not think that she is aware of the distress that exists in the health service.

Baroness Andrews: My Lords, a number of your Lordships have waited for orthopaedic surgery, and it is good to see those people back with us. Orthopaedics is a particular challenge, to which we have responded by setting up what we call an "action on" programme. That is a priority programme to speed things up. There are 43 projects in process at the moment addressing the particular question of timescales in orthopaedics. We are well aware of the situation.

Lord Forsyth of Drumlean: My Lords, does the Minister share my concern that, although the Government have put more resources into the National Health Service, that huge increase in resources has not been matched by a huge increase in output? The best way to get waiting lists and waiting times down is to treat more patients. Why, despite the huge sums of public money being put into the health service, do we not see outputs increase? Instead, we see large numbers of people whose job it is to produce the figures that Ministers want.

Baroness Andrews: My Lords, I could answer the question simply by referring the noble Lord to the modernisation board's report, which shows how much progress we are making on outputs across the board. The waiting lists are lower by 104,000 people than those that we inherited in 1997. In itself, that speaks volumes for the way that the money is being used and the effectiveness of our funding and investment.

Lord Marsh: My Lords, is the Minister aware of another category of people, some of whom are in their 60s, who are refused hip replacement treatment in the National Health Service because they are too young?

Baroness Andrews: My Lords, in this House, we know how young one can be at 60. I know of no cases of the kind to which the noble Lord refers. If he writes to me, we can follow it up.

Lord Turnberg: My Lords, does my noble friend agree that the sooner we bring the Community Care (Delayed Discharges etc.) Bill into effect, the sooner it will have an effect on the waiting lists?

Baroness Andrews: My Lords, at this time this week, I can certainly agree with my noble friend.

Earl Howe: My Lords, a fundamental worry about the Government's waiting list initiative remains. It produces a system in which hospital managers are under greater pressure to deliver on government targets, which is rather a different thing from saying that they should be under pressure to deliver the right patient care and treating the sickest patients first. Is not that a fundamental worry about the initiative?

Baroness Andrews: My Lords, that claim is often made about waiting lists. The Modernisation Agency has worked out a clinically prioritised waiting list that addresses that precise issue and puts the patients in most urgent need at the top of the list. The agency works with clinicians in trusts to make sure that clinical priorities are observed and delivered on.

Lord Blackwell: My Lords, does the Minister accept that experience suggests that waiting time objectives are more likely to be met by freeing up doctors and local managers through programmes such as the Government's foundation hospital programme, rather than through centralised initiatives, and by freeing up patients to take their treatment elsewhere? What do the Government expect the rate of development of the use of non-NHS facilities by NHS patients in the next year to be?

Baroness Andrews: My Lords, I agree with the noble Lord that it is not simply a question of delivery through the hospitals and through centralised systems. One of the reasons why we are so pleased to see GPs develop special interests is that it means that we are taking a whole-system approach. We attach priority to getting people treated and out of pain, and we are considering various ways of doing that. I cannot, however, put timescales or figures on it, in the way that the noble Lord suggested.

Lord Acton: My Lords, is my noble friend aware of what an outstanding performance she has just given? If she was not aware before, is she aware now?

Baroness Andrews: My Lords, I simply cannot answer that question.

Baroness Trumpington: My Lords, is the Minister aware that what the noble Lord, Lord Marsh, said about people being refused treatment because they were too young is true? I speak as somebody who has two false knees. If somebody has that operation at the age of 60, it is possible that the replacements will wear out. Going through such an operation again is something to be avoided.

Baroness Andrews: My Lords, the point is well taken. The sooner we treat people with deteriorating conditions, the better.

Noble Lords: Oh!

Baroness Andrews: My Lords, I have just blown my reputation.

Baroness Howells of St Davids: My Lords, can the Minister tell the House what the primary care trusts do specifically to end waiting lists?

Baroness Andrews: My Lords, because of the devolution of power and the shift in the balance of power, primary care trusts have greater responsibility to work with GPs, including specialist GPs, and to inform and support patient choice. That means that the whole system works more effectively together.

Waterways Regulator

Lord Corbett of Castle Vale: asked Her Majesty's Government:
	Whether they will appoint a waterways regulator to monitor charges for moorings on canals, rivers, marinas and inshore waters.

Lord Whitty: My Lords, I feel that I should apologise to the House and to my noble friend Lady Andrews for preventing her achieving a grand slam today.
	We are not convinced of the need for a waterways regulator. British Waterways and other navigation authorities are already subject to the law against anti-competitive practice. However, I know that British Waterways is discussing with the Inland Waterways Association the procedure for dealing with appeals against decisions on mooring and on other charges. I think that that should be fully explored.

Lord Corbett of Castle Vale: My Lords, I thank my noble friend for that response. But does he acknowledge that canal boat owners question the independence of an ombudsman appointed and paid for by British Waterways and that users of marinas and river berths have nowhere to go when faced with rises in charges of up to 300 per cent in a single year? Will the Minister tell the Inland Waterways Association and the National Association of Boat Owners, which see the need for an independent regulator, where they should go to seek redress, when complaint now can, and does, lead to the loss of moorings?

Lord Whitty: My Lords, as regards British Waterways, the largest operators, the Inland Waterways Association has some complaints about British Waterways because it has moved away from a national matrix of affixing charges to a more locally developed one which is, in effect, making it more commercial. However, the Inland Waterways Association is not in favour of a regulator. It is discussing a more effective appeals system with British Waterways. It is important to note that by and large these charges are fixed only once every five years and that the average increase of British Waterways's mooring charges last year was only 6 per cent.

Lord Livsey of Talgarth: My Lords, does the Minister agree that mooring charges should be levied at a sustainable rate to all who enjoy boating? Certainly, they should be affordable. The appointment of a regulator would help to achieve that good objective.

Lord Whitty: My Lords, I agree with the first part of the noble Lord's question. Because there is a demand on certain moorings and the facilities for some of those moorings have been improved, it is reasonable that the navigation authorities should charge a somewhat higher rate than previously. I do not accept the argument for a regulator on what are essentially commercial transactions. I accept that there is some scope, particularly in relation to British Waterways, for boat owners to expect a better system of appeal. That is under discussion at the moment.

Communications Bill

Lord McIntosh of Haringey: My Lords, on behalf of my noble friend Lady Blackstone, I beg to move the Motion standing in her name on the Order Paper.
	Moved, That the Bill be committed to a Committee of the Whole House.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Sexual Offences Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
	Moved, That the House do now resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 1 [Rape]:

Lord Campbell of Alloway: moved Amendment No. 1:
	Page 1, line 6, leave out ", anus or mouth" and insert "or anus"

Lord Campbell of Alloway: In substance, Amendment No. 1 is reflected by subsection (2) of Amendment No. 8. Amendment No. 8 would leave out Clause 1 and set up a new regime. If Amendment No. 8 were to commend itself, all amendments tabled to Clause 1 would fail. There is a conflict of conception, which I hope may be resolved in favour of this and other amendments. There is no pre-emption and, indeed, notice has been given of the intention to move that Clause 1 do not stand part.
	Against that background, the amendment would remove what is a grave sexual assault, hitherto not understood or defined as rape, from the redefinition of rape proposed by Clause 1(1)(a). The Oxford Latin dictionary renders rapio as ravishment, rape of the Sabines, and fellatio as a sexual perversion which, according to in-house medical advice of the highest order, carries the dire risk of infection from both old and new-age diseases.
	Without consent, or if enforced, it is a serious sexual assault which should constitute a specific offence, but it is not rape as ordinarily understood or defined, nor is it readily intelligible as such to any jury. Albeit that the structure of the Bill affords an opportunity to set up the specific offence, such is not the concern of this amendment. That opportunity will be considered on Amendment No. 11.
	The main distinction between the specific offence and rape is the risk of pregnancy and—without becoming emotional or too detailed—everything that that entails; all the consequences of that risk. On Second Reading, noble Lords who have had the conduct of rape cases and who have had to direct—oh dear, we are doing it again. This is the third time that the noble Baroness has intervened when I am trying to address the House.

Baroness Miller of Hendon: I do beg your pardon.

Lord Campbell of Alloway: I am so sorry to have to do that. I was trying to make quite a serious point. On Second Reading, noble Lords who have had the conduct of these rape cases and have had to direct juries in them spoke about the unacceptable effects of proposed redefinition. No doubt they will speak again today. Your Lordships may wish to take due account of the practical experience of such noble Lords, including the noble and learned Lord, Lord Lloyd of Berwick, whose hallmark of approval for this amendment is acknowledged with gratitude, and even more gratitude that he is in his place.
	The Government want to change the law. What is the justification? As yet, none has been adduced. There is concern about the conviction rate in the consent cases of rape as now and hitherto defined. But that bears no kinship with this proposed redefinition. Is this some form of placebo? If not, what is the justification? As yet, there is no justification. I have read the report of Second Reading more than twice. There is none. Let us hear what it is today.
	There is little else to be said. In the end, it is a lay question—not a legal question—as to what your Lordships feel is a due and fair way of administering justice. It is a matter of perspective. The perspective of the noble Baroness, Lady Mallalieu, recorded in her Second Reading speech, may commend itself to your Lordships as it did on that occasion. She said that rape is the more serious offence and that,
	"To extend the definition [of rape] in that way is to diminish the seriousness of the label attached to a serious offence".—[Official Report, 13/2/03; col. 851.]
	I beg to move.

Lord Lloyd of Berwick: I put my name to the amendment for the reasons given by the noble Lord, Lord Campbell of Alloway, and for the reasons so well stated on Second Reading by the noble Baroness, Lady Mallalieu. I then expressed my complete agreement with her and I am pleased to see her in her place. I can put the reason in one sentence. It is almost always a mistake to allow the statutory definition of a crime to depart too far from the general understanding of that crime, especially in a crime so serious as rape.
	For centuries, rape has been understood as sexual intercourse by force, fear or fraud, or—as we would now say, putting it the other way round—sexual intercourse without the full and free consent of the woman. That is what rape still means to the man in the street. For centuries, penetration per anum has been known as buggery. Non-consensual buggery was always a very serious offence, but it was not regarded as the same offence as rape.
	I remember well a case at the Old Bailey when I was a judge—it was not a case I was trying—in which the defendant denied with indignation that he had raped the complainant. But he went on to say, almost as an after-thought, that he had buggered her instead. Sadly for him, the indictment was immediately amended and there was not much he could do to avoid a hefty prison sentence. But for him, and I suspect a great majority of his fellow citizens, rape was rape and buggery was buggery.
	Nevertheless, I understand and fully accept the reason why rape had to be redefined in law so as to include the non-consensual buggery of a man. And once that was accepted, it had also to include the non-consensual buggery of a woman. But why should it include the non-consensual penetration of the mouth? That is the question we must consider in dealing with the amendment.
	The change in respect of buggery was brought about by Section 143 of the Criminal Justice and Public Order Act 1994, but not everyone realises—I certainly did not—that the original draft of that clause included penetration of the mouth as well as penetration of the anus as part of the definition of the crime of rape. However, penetration of the mouth was not accepted by the Conservative government when Mr Michael Howard was Home Secretary, and it was not pressed by the Labour opposition.
	Therefore, the question I must ask both Front Benches is: why have they changed their minds? What has happened since 1994 in respect of forcible penetration of the mouth to show that the law has not been working? If there is no reason to believe that the law has not been working, I am wholly unpersuaded of the need for a change now unless we are simply going to change the law for the sake of changing the law.
	I doubt whether the Minister remembers, but on Second Reading he suggested it might be useful for me to read the whole of the voluminous evidence contained in Part 2 of Setting the Boundaries. I regarded that suggestion as a challenge, which I duly accepted. As a result, I can say that the only evidence I can find in the whole of that volume which relates to the forcible penetration of the mouth came from a research project carried out in 1994—it happens to be the same year as the Criminal Justice and Public Order Act—referred to at page 203.
	That case concerned a research project carried out among homosexuals. Out of the 219 cases considered, 90 per cent were charged as rape—that is, penetration per anum—and in only 10 per cent of the cases was the offence confined to penetration of the mouth. Obviously, that would be insufficient to make a change of the law now necessary. That is the only evidence which supports the move now proposed by the Government.
	I turn to the reason for leaving the law as it is. It is simply this: most people would accept the point made by the noble Lord, Lord Campbell, that while non-consensual penetration of the anus is a serious offence, it is less serious than penetration of the vagina. The reason generally given—and the reason given by the noble Lord, Lord Campbell—is the risk of pregnancy or the transmission of venereal disease or AIDS. But I believe that the real reason lies deeper than that. Penetration of the vagina is the more serious because the worst is always the corruption of the best. And forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable. If I am right about that, and if penetration of the mouth is indeed less serious than penetration of the vagina, as I believe it to be, by including penetration of the mouth in the crime of rape, one is, as the noble Baroness said, diminishing the crime of rape itself. We should not do that without very good reason.
	I accept that there are some countries where forcible oral sex has been included in the definition of rape. The South African Law Commission proposed that it should even include penetration of the nose and the ears, although I am bound to say I find that hard to imagine. In any event, whatever other countries have done is no reason for us to follow.
	No doubt in reply the Minister will say that oral penetration is a serious offence. So it is and we all agree about that. But why is it not sufficient to include it in Clause 3, since that clause also carries with it a life sentence? Surely, that will send out a sufficient signal—something which Ministers are always anxious to do—if a signal is indeed needed.
	I have not put my name to the amendment tabled by the noble Lord, Lord Campbell, on that point because I am not altogether happy with the drafting and I would in any event keep the sentence to one of life imprisonment. Doing that, a new subsection (1) to Clause 3 would be so easy to draft. It would not even mean that the heading of the clause must be changed. It would read something like:
	"(1) A person (A) commits an offence if—
	(a) he intentionally penetrates the mouth of another person (B) with his penis,
	(b) B does not consent to the penetration, and
	(c) subsection (3) applies".
	I hope that the Minister will give serious thought to that way of approaching the matter. It will achieve all he wants.

Baroness Mallalieu: I rise to speak briefly in support of the amendment tabled by the noble Lord, Lord Campbell of Alloway, and to support what has just been said by the noble and learned Lord, Lord Lloyd of Berwick. At present, non-consensual oral sexual intercourse is dealt with in the courts in one of two ways: either as an indecent assault—which already carries heavy penalties—or, if rape has taken place, as an aggravating factor that will increase the ultimate penalty imposed. It may be that that is not sufficient and that a separate offence should be created to mark the gravity of this type of indecent assault, but for the reasons that have just been set out before the Committee, I believe that it would be wholly wrong simply to take the particular activity and put it in with the definition of rape.
	I say that for two reasons. First, ordinary members of the public, in particular young people, draw a clear distinction between the two acts. I know that to be the case from my experience in the criminal courts, often dealing with young offenders in relation to sexual offences and thus learning something of the somewhat curious world—one that is remote from mine—of young people today. As I have said, a clear distinction is made. For example, a young girl may well be ready to consent to what is known in the estates of south London as "giving a shiner", whereas not for a moment would she dream of having full sexual intercourse.
	Secondly, the legislation will deal primarily, although not completely, with younger people. However, the legislation must also speak to those ordinary people who serve on juries. They will have to look at a particular set of facts and decide whether what they have found fits the label of rape, which is something that juries take extremely seriously. I fear that an act is to be included which, for ordinary people, is not rape. I have discussed this with a number of people since the matter was raised at Second Reading. The usual response has been, "What planet are those people living on? Of course it is something quite different. It is serious, but different". Once you begin to import a set of facts which in the minds of those who will be trying such cases does not meet the label of rape, then difficulties will arise. I am sure that people serving on juries will acquit when there should not be an acquittal. There should be a specific conviction for a specific offence.
	A number of suggestions have been made about how that might be done. The noble and learned Lord, Lord Lloyd, has suggested one way, while another is that set out by the noble Lord, Lord Campbell of Alloway, in Amendment No. 11.
	I understand that the Minister has come under pressure from victims of such offences. They regard the offence as being as unpleasant as rape, and they may be right about that. If they are right, then we must accept it and ensure that the law is able to meet their concerns. But it is also different from rape. That is why I say that the two should not be put together.
	The Minister also has the police telling him to follow this course, but to that I can say only that the Criminal Bar Association and many other bodies feel that it will be a mistake, for the reasons I gave at Second Reading. The change would alter the label of rape in a way which I believe would weaken the seriousness of that offence. Furthermore, I think that we could face a real danger of seeing acquittals in cases where juries feel that the label is not deserved in light of the particular facts of the case.
	Despite what he may have been told by his officials, by pressure groups and by others, I hope that the Minister will see a way to meet the concerns of victims which does not undermine the prospect of correct convictions. That can be done by setting out in the way other noble Lords have suggested a separate, serious offence to mark the gravity of this kind of behaviour.

Earl Russell: The noble and learned Lord, Lord Lloyd of Berwick, asked a fair question which deserves a fair answer. He asked what has changed since 1996 to justify a change in the definition of the crime. We have here a case where the law is adapting, as the law has done for centuries, to a change in the culture within which it operates. It is adapting to a change in what is perceived as rape.
	The noble and learned Lord stressed that what is distinctive about rape is that it carries the risk of pregnancy. But of course thereon he makes his own argument felo de se as soon as he includes penetration of the anus, which does not carry any such risk. That recognises immediately that there may be something akin to rape which does not carry that risk.
	Part of this change in the culture has been an increasing recognition of the fact that there is such a thing as male rape and that, qualitatively, that kind of assault has a great deal in common with the other kind of rape. Thus treating them as the same offence is permissible. Furthermore, there has been a real change in the perception of the offence of rape against a woman. It concerns not only the risk of pregnancy, which because of effective contraception has lessened somewhat. Rather, rape is now perceived more as an assault against a woman's privacy, her dignity, her self-respect and her right to be herself. In those respects, in the forcible invasion of privacy, intercourse through the mouth or through the anus may partake of many of the characteristics of the other kind of rape. It is an assault against a woman's dignity.
	The noble and learned Lord might like to consider the parallel of indictments for treason, which technically involves pursuing the king's death. Early indictments for treason tended to set out specifically that the acts were undertaken to "the danger of the life of the said Lord King". But as we come into the 17th century, increasingly the indictments state that acts of treason are those committed, "against our sovereign Lord the King, his Crown and dignity". One understands perfectly well what is meant by that.
	Over the past 10 years our concept of rape has changed, as indeed I have changed my own mind. The concept of rape is now an act against a lady or, as it might be, a gentleman—if I may so put it—against their crown and dignity. I would be happy to see the Bill remain as it is.

Baroness Gould of Potternewton: I wish to refer briefly to those organisations not mentioned by my noble friend Lady Mallalieu which believe that this amendment should not be carried. I cite bodies such as Justice, the Rape Crisis Federation, the Campaign to End Rape and Women Against Rape. People in those groups work at the sharp end of the problems. They do not sit in a courtroom arguing the facts of a case; they have experienced them. They feel that the amendment should not be carried.
	I should like to mention in particular the Metropolitan Police, which supports the widening of the definition of rape to include penetration of the mouth. From the experience of the police—it has a great deal—this is as serious an offence as rape under the current definition and should be recognised as such. The police believe that it is equally as damaging and traumatic as vaginal or anal penetration and should not be seen as a lesser offence.
	I accept that all noble Lords have made the point that this type of assault is a very serious offence. However, I am concerned that if it is removed from this clause, in effect it will become a lesser offence. I do not believe that that is right. We must send a clear message to those who have suffered, to those who work at the sharp end of these problems and to the lay people referred to by the noble Lord, Lord Campbell of Alloway. All those parties say that the Government have got it absolutely right.
	I do not believe that the matter is a question of the risk of pregnancy or disease; in a sense those issues are peripheral to the central point. We are discussing here the suffering, trauma and problems of women who have faced this kind of assault. The amendment should not be supported.

Lady Saltoun of Abernethy: Something has been pointed out to me that I want to mention to noble Lords. As far as oral penetration is concerned, most people have a set of teeth. Clenched teeth can provide quite a good defence. Indeed, not only can they provide a good line of defence, they can be an aggressive form of defence because teeth can also bite. For that reason, it is possible that oral penetration should be considered a lesser offence than the other two.

Viscount Bledisloe: Everyone is rightly agreed that forcible oral penetration is a serious offence. The only question is how it should be labelled. At the outset of the Bill, the noble and learned Lord, Lord Falconer, has a simple choice about whether or not to accord to common sense and continue to use the word "rape" in the sense in which it is understood by the populace.
	When we are told what is the generally accepted attitude and understanding of the ordinary man in the street—and, particularly, the young man in the street—I find the speech of the noble Baroness, Lady Mallalieu, more convincing, and her experience more telling, than that of the noble Earl, Lord Russell.
	We all know what rape is. The Government can either use "rape" in the way in which it is understood by the populace and have a separate crime for forcible oral penetration; or they can pervert the word "rape", as the Bill does at the moment and have people going around saying, "It is ridiculous. I have been convicted of rape but I didn't rape her at all; I penetrated her mouth". As the noble Baroness, Lady Mallalieu, made plain, people will not understand.
	I urge the noble and learned Lord, at the very outset of the Bill, to display a little common sense and give way to this extremely sensible amendment.

Baroness Gould of Potternewton: I hesitate to speak again, but does the noble Viscount believe that victims, the rape crisis people and the Metropolitan Police do not understand the consequences of the act? They understand them clearly. There may well be people on the street who do not consider it a serious act—but it is, and people who have experienced it know that it is.

Viscount Bledisloe: The noble Baroness clearly did not listen to me. I did not say it was less serious; I said it was different. You do not improve a crime of robbery by calling it arson. It may be equally serious, but mislabelling it with a word that people do not attach to it is silly.

Lord Skelmersdale: In considering the problem I have tried to put myself in the position of a juror, something that I have never been. It seems to me that, whichever way round it is, I would like to be directed by the judge at the end of the trial as to whether or not "rape" includes forcible oral sex. We are talking about forcible sex and the dangers attached thereto.
	As to which side of the argument I would come down on, I believe that all forcible sex should be classed in the same category. Whether it is called "rape" or anything else does not particularly matter; to me, it is exactly the same.

Baroness Noakes: I am grateful to my noble friend Lord Campbell of Alloway for raising the issue of whether oral penetration should be included within the definition of rape. We debated the subject at Second Reading and we should debate it fully as the Bill proceeds. As at Second Reading, I have listened carefully to the different views expressed.
	I find this a difficult area. I have no doubt that non-consensual oral penetration is equally as unpleasant, serious and traumatic for the victim as non-consensual vaginal or anal penetration. That was the finding of the report Setting the Boundaries. I do not know on what evidence the finding was based, but the report certainly came to that conclusion. It is a serious issue from the victim's perspective. We on these Benches do not object to the formulation of the offence of rape as it stands in Clause 1, although, equally, we would not object if a separate offence of non-consensual oral penetration was devised.
	I know that my noble friend has tabled another amendment on the creation of a separate offence. As the noble Baroness, Lady Gould said, it is very important that if a separate offence is created it should not be considered a lesser offence, as indeed my noble friend's amendments currently have it. If it is decided that the word "rape" cannot encompass oral penetration, a separate offence could proceed provided it was regarded as a very serious offence.
	I question the Government's approach to oral sex. In the Bill they have placed non-consensual oral penetration on a par with non-consensual vaginal and anal penetration. But elsewhere, the Government—in the guise of the departments for health and education—are backing a scheme pioneered by the University of Exeter to teach children about the so-called levels of intimacy that can exist short of full sexual intercourse. Oral sex is one of those levels of intimacy.
	Schoolchildren are being taught that consensual oral sex is of a lesser order than consensual vaginal or anal sex. They are being taught that it is not full sex. So how can we expect those children to grow up to see non-consensual oral penetration on the same basis as non-consensual vaginal or anal penetration? If a generation grows up believing that it is of a lesser order, we shall see the law fall into disrepute.

Lord Campbell of Alloway: I apologise to my noble friend. I am intervening only because the Committee should not, quite innocently, be misled. I took the advice of the noble Lord, Lord Walton of Detchant, and of my noble friend Lord McColl. Having read the Exeter story, I said, "What about it?" They said that the dire risk of infection is precisely the same. I shall not go into details, but I gather that it is. I hope that my noble friend will forgive me for intervening.

Baroness Noakes: I am grateful to my noble friend for that information. As I understand it, schoolchildren are being taught that oral sex is permissible as a lesser order than full sex in order to restrict the risk of pregnancy. The issue of sexually transmitted diseases may be part of it, but the drive to reduce teenage pregnancies is the major issue.
	If we are teaching children, on the one hand, that consensual—

Earl Russell: When the noble Baroness says that it is for the purposes of restricting the risk of pregnancy, is she not making very clear the distinction between the purposes of health education and those of the criminal law?

Baroness Noakes: I am grateful for that thought. On the one hand, the Government are saying one thing in relation to health education and the teaching of attitudes towards certain sexual behaviours, and, on the other, enshrining a different approach to different kinds of sexual behaviours in law. That may cause a conflict because, in due course, these children will grow up and, potentially, commit these offences not understanding the differences, or they may find themselves on juries not understanding the distinctions that have been made.
	These are very important points in relation to the workability of the Bill. It is an issue that will be raised in amendments to several clauses. It is most important that we produce a Bill that is workable in practice. The concern I raise is that if society evolves an attitude towards oral sex which is different to the one that exists in the way in which the offences are framed in the Bill, we shall be storing up trouble for the future. I raise my concerns on that basis. I shall listen carefully to what the Minister has to say about them.

Baroness Gibson of Market Rasen: I had not intended to speak in the debate. The noble Lady, Lady Saltoun, mentioned one way of perhaps being able to stop oral sex being forced upon one; she suggested that we all have teeth we can clench. But we have to think very carefully about the circumstances in which rape takes place and the feelings of the person being raped, whether it is a vaginal, anal or oral rape. Victims are undoubtedly traumatised; they are in great fear and, very often, in great danger. Unless someone actually bit off the man's penis, which I have no doubt would incapacitate him, I suggest that it would be a very dangerous thing to do. It would enrage whoever was perpetrating the crime and, I fear, make matters much worse for the victim.

Lord Thomas of Gresford: The noble Lord, Lord Campbell of Alloway, asked about the need for change. In 1990, the recorded crime statistics show that there were 3,391 complaints of rape, with a conviction rate of 25 per cent. That may not seem particularly high, but that was the figure in 1990. The figures for 2001-02 show that complaints of rape increased to 9,008. Those complaints have not been withdrawn but have been pursued. But by now the conviction rate is 7 per cent, not 25 per cent. It is clear that the framework of the law needs to be adjusted and improved.
	For those of us who say and will continue to say throughout these proceedings that the Government should trust the judge and trust the jury to do their job, they can do their job only if the framework is right. Our main criticism of the Government's proposals is not that they are attempting to change things—we think that the framework has to be changed—but that their mechanisms are wrong and confusing, and will lead to fewer convictions rather than more.
	On the specific amendment, the Committee will see when we reach Amendment No. 8 that we have attempted, in dealing with labels, to move away to a degree from the bare charge of rape—which, in itself, is a disincentive to conviction—and have included the phrase,
	"sexual violation by unlawful connection"
	which is where the oral sex comes in. Indeed, in subsection (4)(b) of the proposed new clause, sexual connection means,
	"connection between the genitalia of any person and any part of the mouth or tongue of any other person".
	I believe that that meets the objections that have been voiced on this amendment which are concerned with making clear precisely what sort of conduct is being punished.
	Members of the Committee will also observe that in the new clause proposed in Amendment No. 8 and that proposed in Amendment No. 10, the sentence of imprisonment for sexual violation by rape and by unlawful connection is precisely the same. As previous speakers have pointed out, the same dangers, including HIV infection and others, can result from penetration of the mouth by the genitalia of anybody, as well as the use of other objects.
	I had not intended to speak on this amendment, but this is a lead-in to what I propose to say on Amendments Nos. 8 and 10. There has to be an improvement, but we want the legislation to be effective, so that the guilty are punished and the innocent are not wrongly convicted.

Lord Lucas: I am at all times reluctant to agree with the Liberal Party, but I find myself entirely at one with the noble Lord, Lord Thomas of Gresford, on that point. It is not only in the streets of south London that the difference between oral sex and full sex is understood; it is also understood at the very highest levels—indeed, in the office of the President of the United States, as noble Lords will remember.
	It seems ridiculous to try and expand a crime to include all sorts of other things which are not the same. It is possible to do things that are nastier and worse than rape. I would include genital mutilation as such a crime, but it is not rape just because it is horrible and sexual. It is much better to keep these things in separate pots, to address the jury in a language they understand, to make the crime just as serious and deal with the perpetrator just as seriously, but to keep the English straight.

The Earl of Listowel: I wish to clarify one point that has arisen on several occasions. It is my understanding that penetration through the anus gives rise to a higher risk of transfer of HIV/AIDS than through the vagina or the mouth. I may be incorrect; if there are medical practitioners here, perhaps they can correct me. It is important to be clear on that point.

Baroness Howarth of Breckland: I support the point of the noble Baroness, Lady Gould, with regard to looking at the issue from the position of the victims. I am quite prepared to be called silly after what I say. However, having spent most of my life dealing largely with child sexual abuse as well as other forms of abuse, I feel I can speak from the victims' point of view. Although I have not been a victim myself, for which I am grateful, I can see that there may be great value in specifying these issues. I have spent time in court too and think that if the offences are absolutely clear we have a much better opportunity of getting convictions than if there is any obscurity. I have talked to many young women who have lost their case on a technical point, so clarity is essential.
	It is also essential for us to understand the trauma and pain of young women and children who have experienced penetration in the mouth by the penis. Many men know that that is one way of making sure that victims do not show certain signs. Thankfully, DNA is taking us further, but many men believe that if they assault a young woman or a child without leaving marks, they are much more likely to get away with the offence.
	We have to have a real understanding of this matter, not a person-in-the-street understanding. We all have a view about what we read in the newspapers and may feel that some young men have been treated worse for a bit of roughness they should have got away with. Many young women who have suffered describe the trauma that it leaves them with for the rest of their life. They cannot make relationships, their marriages break down and they have difficulty with their children. When making these decisions, we must bear them clearly in mind.

Lord Falconer of Thoroton: Members of the Committee have indicated that the amendment would remove non-consensual penile penetration of the mouth from the rape offence as it presently stands in Clause 1. Under existing legislation, forced oral sex is charged as an indecent assault. According to the evidence submitted to the sexual offences review by victims and victim support groups, forced penile penetration of the mouth is a very serious form of assault that can be as horrible, as demeaning and as traumatising as other forms of forced penile penetration and is as psychologically harmful as vaginal and anal rape, if not more so in some cases. It is not unusual for women and children who have been violated in this way to develop long-term difficulties in eating and drinking. They may also have difficulty in visiting the dentist and a whole range of psychological trauma on which the noble Baroness, Lady Howarth, has only touched.
	I should like to indicate some of the evidence that was received by the sexual offences review. Quotes included:
	"Rape should be extended to include oral penetration because it validates the seriousness of the offence, the impact and effects, ie sexually transmitted disease of the mouth and the throat".
	"Defining oral penetration as rape is really important—it is just as bad to be forced to have oral sex. This will mean there will need to be a new way of thinking".
	"The trauma caused by penetration without consent of other than the vagina is directly comparable and defining oral penetration as rape is appropriate".
	"Adult abusers commit sexual assaults by penetration of the mouth in the knowledge that there is a lesser penalty".
	Other pieces of evidence confirm the trauma caused by such acts.
	If that is so, there are three options open to us. First, we include oral penetration within the definition of rape. What are the reasons given against that? The reason given almost exclusively by lawyers is that ordinary people do not understand rape to mean oral penetration. I say with the greatest respect that the noble Lord, Lord Skelmersdale, gave the answer to that. As regards proceedings, if the judge gives a direction as to what is meant, just as there was no difficulty in relation to anal intercourse, there would be no difficulty in that regard in relation to oral penetration of the sort described. Therefore, I do not think that there is force in the argument that juries would not convict in that respect.
	Secondly, I refer to the argument that what we are discussing is too far away from the common man's understanding of what the word "rape" means. The purpose of the redefinition of "sexual offences" is that they should reflect victims' experiences. If after listening to what victims have said the view is reached that what they have suffered is just as serious as rape, just as anal intercourse has been appropriately described as rape, so too can oral penetration be so described.

Lord Lloyd of Berwick: I am grateful to the noble and learned Lord for giving way. Anal intercourse had to be brought within the definition of rape for reasons of discrimination. Those reasons had nothing whatever to do with oral penetration.

Lord Falconer of Thoroton: I say with the greatest of respect to the noble and learned Lord that I believe he is missing the point. The point is whether the judicial system is able to describe oral penetration as rape. In my view it is, just as it was, for whatever reason, in relation to anal intercourse.
	The next reason given for not including the provision we are discussing is that it diminishes the importance of vaginal or anal intercourse on the ground that oral penetration is not as serious. It is for the House to judge the evidence put before it, particularly by the noble Baroness, Lady Howarth, as to how seriously victims regard oral penetration. I say with the greatest of respect that, as the noble Lord, Lord Campbell of Alloway, said, it is an issue to be decided not necessarily on a lawyer's view of the most appropriate way to deal with it, but on the basis of granting justice to the victims of that particular crime.
	We have thought long and hard about the matter. As the noble Baroness, Lady Noakes, said, it is a difficult issue. We believe that the right course is to treat oral penetration as one form of rape as that indicates its seriousness, does not lead to problems in relation to the way in which proceedings are dealt with in court and reflects the concerns of victims. An alternative is advanced; namely, in effect to create a new offence of oral penetration. We believe that that over complicates the situation, separates out oral penetration from rape, which is traditionally the most serious sexual offence, and that it is unnecessary. We have listened carefully to the debate both inside and outside the House. Indeed, I was privileged to have a conversation with the noble Baroness, Lady Mallalieu. As I say, this is a very difficult issue but we believe that we are taking the right course in this regard. Therefore, I invite the noble Lord to withdraw the amendment.

Lord Campbell of Alloway: I wish to make a very short speech. I am grateful to all Members of the Committee who have spoken. I totally agree with the noble and learned Lord, Lord Falconer of Thoroton, that this is in effect a lay matter for the judgment of this House as to what constitutes due administration of justice. It is not a legal matter. I agree with the noble and learned Lord that as this is a matter for the House to decide, it would be quite wrong for it to have to decide it today. There has been a constructive debate. There is a balance of opinion. I shall not deal with those Members of the Committee who spoke on one side of the argument and those who spoke on the other, but there is a balance of opinion. I should like to have the opportunity to consider the speeches in some detail. In begging leave to withdraw the amendment, I may return to it, if so advised, on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway: moved Amendment No. 2:
	Page 1, line 9, leave out "or (3)"

Lord Campbell of Alloway: I am afraid that this amendment is far more complicated. Amendment No. 2 seeks to leave out the words "or (3)". It is a paving amendment to Amendment No. 3 which seeks to leave out subsection (3) of Clause 1. In the context of that amendment, I beg leave to speak to Amendments Nos. 4 and 5 in the name of my noble friend Lady Noakes as they are sandwiched between my Amendments Nos. 3 and 6. However, I speak to them briefly at this stage.
	Those amendments of my noble friend oblige an accused to match his own characteristics with those of an abstract reasonable person in substitution for proof of his actual intent. That defeats the presumption of innocence and fails wholly to mitigate the manifest injustice of subsection (3) of Clause 1, unamended, which removes the defence of honest but mistaken belief as to consent.
	Amendment No. 2—a paving amendment—also serves as a paving amendment to Amendment No. 6, which seeks to leave out subsection (4) of Clause 1. Subsection (4) of Clause 1 applies Clause 78. Notice has been given of the intention of certain Members of the Committee to oppose the Question that Clause 78 stand part of the Bill. In that context, I beg leave to speak briefly to Amendment No. 7 in the name of the noble and learned Lord, Lord Falconer of Thoroton.
	I am advised that I have to explain that Amendment No. 2, which I move as a paving amendment to Amendment No. 3, renders Amendment No. 3—to leave out subsection (3) of Clause 1—consequential. However, the paving amendment to leave out subsection (4) of Clause 1—Amendment No. 6—is not consequential and has to be moved separately.
	Having got over that, I turn to the merits of the argument. The broad merits of the argument to leave out subsections (3) and (4) of Clause 1 had the general support of your Lordships on Second Reading, save as to leave out subsection (3) of Clause 1, which was not spoken to by this Front Bench. The object of the subsections is, apparently, to meet the concern of the low conviction rate—to which the noble Lord, Lord Thomas of Gresford, referred—in consent cases and to bolster up convictions.
	This morning, I read one of those sad pamphlets from Women Against Rape, which said that they could not count,
	"on the reasonableness of those who conduct the trials—judges, lawyers, defence or prosecution".
	It is difficult to meet that type of concern and I do not propose to try to do so. However, there is another concern on the other side of the balance. One has to take into account the erroneous convictions based on entirely false accusations. One does not find Women Against Rape or other such organisations writing much against those.
	On the balance of what is due and fair administration, one may well ask whether the real victim is not the person who has an erroneous conviction. Dire consequences may follow, including loss of his job and marriage. When he comes out of prison after seven years, he may find that, by some method such as DNA, he can prove that he was falsely convicted—and the Court of Appeal may so decide. Are such men not worthy of consideration? They are the real victims of these consent cases. Let us not overlook the concern and disappointment of the complainants who are unable to convince the jury of their evidence. I have sympathy for them, but one cannot disturb the entire balance of justice to accommodate sympathy.
	Where does the true balance of due and fair adjustment lie between the parties in these cases? Members of the Committee may find that the assessment of the noble Baroness, Lady Mallalieu, commends itself. On Second Reading, she said:
	"False allegations are usually made in the context of a pre-existing relationship . . . Juries rightly see that such allegations are easy to make and difficult to disprove. Juries are correctly wary of convicting unless there is other evidence or evidence of violence".
	On Clause 1(3) and (4), she said that moving the goalposts to try to correct what is seen as an imbalance would not work. She added:
	"We are importing trouble and difficulties which will lead . . . to appeals, to test cases and to redefinition".—[Official Report, 13/2/03; cols. 850-51.]
	On Clause 78, which shifts the burden of proof, the noble Baroness expressed her ultimate degree of alarm. Her speech on that part of the Bill is to be found at cols. 850 and 851 of Hansard.
	I return to the question of erroneous convictions because we must keep a balance here the whole time. Members of the Committee may have read an article in The Times on 18th March about the British Airways pilot who was convicted of rape by a stewardess on a false allegation. He was sentenced to imprisonment, lost his job and so forth. By chance, he found the flight log, which proved that the allegation was false. His appeal succeeded and the conviction was set aside. Can one just ignore such cases? That man had lost everything. I do not know his present circumstances, but imagine the plight of someone who has lost several years from his life.
	I draw attention to the speeches made by the noble Lord, Lord Campbell-Savours and the noble Baroness, Lady Mallalieu, in this context. Those speeches commended themselves to your Lordships on Second Reading, and I believe that they will commend themselves again now. There was no dissent at Second Reading.
	Amendment No. 3 would leave out subsection (3). The defence of honest mistaken belief is abolished. It was established in 1976 by the Appellate Committee of your Lordships' House. The Crown no longer has the overall burden of proof. The defence is hobbled by conclusive presumptions as to non-consent under Clause 78 (5) to (8). As to establishing consent, the burden on the defence relates to an abstract concept—the conduct of a reasonable person under Clause 78(2). There is no need any longer to prove actual intent. That was the fundamental objection of the noble Lords, Lord Carlile of Berriew, and Lord Thomas of Gresford, on Second Reading. They made that point far better than I could, and I hope that they return to this pitch again today. The sensitive speech made by my noble friend Lord Astor of Hever on mental disability, IQ, autism and so forth in effect torpedoed the concept of a reasonable person as a substitute for the actual intent of the man accused.
	Amendments Nos. 4 and 5 to Clause 1(3) enhance the obscurity of subsection (3), as implemented by subsection (4), and in no way mitigate the unfairness. I shall deal with the main objections to those amendments when they are moved.
	The question is whether subsections (3) and (4) should be amended or left out. Those subsections afford manifest injustice and unfairness, enhancing the prospect of erroneous convictions and a spate of appeals against conviction on grounds of misdirection, which surely must lead to redefinition. The criticisms as to Clause 1(4), on Amendment No. 6, have already been dealt with in outline. I am anxious not to go over the traditional time for a speech. I beg to move.

Lord Falconer of Thoroton: I apologise for speaking at this point. The noble Lord, Lord Campbell of Alloway, makes a number of very important points about the reasonableness element in relation to consent and the rebuttal of presumption in Clause 78. Those issues need to be addressed in detail. They will be addressed in detail in the debate on the amendments tabled by the noble Baroness, Lady Noakes, in the next group of amendments. They will be considered again in the following group of amendments, headed by Amendment No. 7, and again in the following group, headed by Amendment No. 13. Speaking for myself, I intend to save my detailed response to the important points made by the noble Lord until we reach that point. It will be much easier for the Committee to understand the detail of the argument at that point. I hope that the noble Lord will not think that I am behaving disrespectfully when I say that I believe it would be better if we waited until those later groups.

Lord Campbell of Alloway: I am grateful to the noble and learned Lord. We have to deal sensibly with this complex affair and his suggestion is entirely appropriate. I am taking the same line as that in my noble friend's amendments—which I am opposing. If we are going to deal sensibly with this, it would be quite inappropriate to take the opinion of the Committee tonight, as we would not have gone through the process in the objective way to which the noble and learned Lord referred. Is he content?

Lord Falconer of Thoroton: Yes, my Lords.

Lord Ackner: The last thing that I want to do is incur the displeasure of the Committee by being premature or jumping the gun. However, my objection to Clause 1(3) is that this clause is beyond redemption; and that goes from 1(3) right the way through. In a nutshell, I believe that the present law is perfectly sound and sustainable and that what is proposed will confuse a jury and undermine what is known as the "golden thread"—namely, that you must prove a guilty mind in an accused before you can convict. I do not want to run the risk of being told that I should reserve this for a later stage, if that is what the Committee would wish, but I do not want it to be thought that by remaining silent I concur with what is proposed in relation to Clause 1(3).

Lord Falconer of Thoroton: Again, it is a matter for the Committee. I should think that this is the most reasonable way of dealing with it. When we come to reasonableness, with which we shall deal in detail, the noble and learned Lord can unleash his volleys in relation to Clause 1(3). I think that that would be most appropriate because the amendment moved by the noble Lord, Lord Campbell of Alloway, has put rebuttal of presumption and reasonableness together in one amendment. That is quite a tasty feast all at one go and we should separate the two. It is purely a matter of preference. I certainly would not regard the noble and learned Lord, Lord Ackner, as in any way debarred from making his points then.

Lord Ackner: When do we come to reasonableness—under what guise?

Lord Falconer of Thoroton: We will come to it in the next group, headed by Amendment No. 4, and again in the group beginning with Amendment No. 13, which contains the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick.

Lord Ackner: Is it all under Clause 1?

Lord Falconer of Thoroton: Yes.

Lord Lloyd of Berwick: I wonder whether I might say a few words now as my name is included in two of the amendments proposed by the noble Lord, Lord Campbell of Alloway. I am dealing solely with Amendments Nos. 2 and 3 and entirely follow the lead given by the noble Lord.
	At Second Reading, I opposed the inclusion of Clause 1(3) for three reasons. First, it seemed to me wrong in principle. It is contrary to a basic rule of the criminal law that a person can only be found guilty of a serious offence such as murder, theft, fraud or rape if he has a guilty mind. The second objection was that Clause 1(3) would be unworkable in practice when applied in combination with Clause 78. The third reason was that the Government have simply not made out a case for such a fundamental change in the criminal law.
	It is said that the conviction rate is low and that it could be increased if we were to include a test of negligence in the definition of the crime of rape. It is that, of course, which Clause 1 provides. I am, for myself, in no way persuaded of that. The only result, so far as I can anticipate the result, will be to increase the number of appeals, not increase the number of convictions. For the jury would presumably have to be asked after the defendant had been convicted on which of the two grounds they had convicted him, whether under Clause 1(2) or Clause 1(3). That is always a source of trouble, as anyone who has had experience of dealing with juries will know.
	Indeed, as I see it, the trouble with the Bill as a whole, especially in relation to Clauses 1 to 6 and Clause 78, is that its provisions have been formulated predominantly though not exclusively by civil servants, as a result of research carried out predominantly if not exclusively by civil servants. For obvious reasons, they can have had no experience of how to direct juries or how juries in fact think and work in practice. I am afraid to say that that shows through in the way in which the Bill has been crafted. Only two judges are mentioned by name as having been consulted—one from Australia and the other from Scandinavia. I must assume that the Lord Chief Justice has been consulted. I would assume also that the Judicial Studies Board had been consulted. However, they are not mentioned.
	One suspects that it was only when the Minister himself got to grip with the Bill that it was first realised that Section 78 as drafted is simply unworkable. Happily, that has been recognised in part since subsection (1)(a) and subsection (2) are now omitted. However, surely one is entitled to comment that that ought to have been realised a great deal earlier. Still, it seems to me that Clause 78 is a nightmare. But I leave that part of the argument to others who will be addressing it more directly on later amendments.
	I propose to leave over for now the question of principle involved in this amendment as it is a principle that may seem of more importance to lawyers than to others. It was, I think, the point on which all the lawyers who spoke at Second Reading were unanimous. Instead, I shall start this time with whether the Government have made out a case for any change.
	Much of the evidence in volume 2 which is relied on to support a new offence of rape by negligence—that is what Clause 1(3) is; let there be no mistake about that—ignores entirely the practical effect of the 1976 amendment Act. The presence or absence of reasonable grounds for the defendant's belief is always a factor that the jury must take into account. That is what the 1976 Act says.
	The argument repeated so often that it is absurd for a defendant to get off on the grounds of honest belief, however unreasonable, altogether ignores the role of the jury. The simple answer is that the defendant does not get off in such a case. I do not have as much experience of rape cases as other judges, but I have some, and I have never heard of a case in which the defendant has got off on the grounds of honest belief where that belief was unreasonable. Juries are no fools. They can tell when the defendant is lying in order to put up a bogus defence. The more unreasonable the defence, the more likely it is that they will convict. If ever there were a crime where the question of guilt should be left to the good sense of juries, with the minimum of statutory interference by Parliament, it is the crime of rape.
	Then the Government rely on the low percentage of convictions, and say that that must be due to some deficiency in the law. However, there is literally no evidence to that effect. For example, we all know that the abolition of the doctrine of corroboration, which was supposed to increase the percentage of convictions, had no such effect at all. I suspect that the same will be true if we enact Clause 1(3). Some reliance is placed on the 27 per cent conviction rate in the state of Victoria, compared with our current figure of 7 per cent. In Victoria, the weaker cases are all weeded out in the course of earlier committal proceedings, so they never get to the door of the court. The comparison with Victoria is therefore completely meaningless.
	In the final document produced by the Government, Protecting the Public, only one argument is put forward for the new offence of rape by negligence. It contains the following sentence:
	"We believe the difficulty in proving that some defendants did not truly have an 'honest' belief in consent contributes in some part to the low rate of convictions for rape".
	If that belief is based on anything at all, its basis is nowhere stated. My conclusion is therefore that the proposed change will not increase the number of convictions, and will only lead to more appeals.
	I return to the question of principle. Some years ago, the House decided that the intention necessary for the crime of murder could be presumed if a reasonable man would have foreseen the consequences of the defendant's act, even though the defendant did not foresee those consequences himself. That decision was so obviously wrong that it did not last long. As the defendant did not have a guilty mind, he could not be guilty of murder. The same is true of every serious crime. Indeed, it is true of every crime, except those of strict liability such as speeding. No one has ever suggested that rape should be a crime of strict liability, and I hope that they never will.
	I mention those points only as the Committee should be aware of what is proposed. It has always been the law that a person can be guilty of rape if he knows that the woman is not consenting or he is reckless. However, there is a crucial distinction between recklessness and mere want of care. Recklessness is a guilty state of mind, because the defendant is indifferent to whether the woman is consenting or not. He could not, as is sometimes said, care less. However, carelessness is not a guilty state of mind. That is what the case of Morgan decided.
	Now the Government will change all that, and they will do so contrary to the views expressed by the Heilbron committee—it was set up specifically to consider the case of Morgan–by Parliament in 1976, by the Criminal Law Revision Committee in 1984 and, most importantly of all, by the Law Commission as recently as 2000. They will do so contrary even to the views expressed in their own review. The change is not supported there. The external group was in favour of a change, but the steering group was not. The review sat on the fence.
	It might help the Committee if I read out two or three sentences from the review. Paragraph 2.7.5 states:
	"We also considered the issue of honest belief in consent with very great care".
	It sets out the arguments one way and the other and concludes:
	"However, we were not all agreed on the extent to which the law should be changed in this area. Accordingly we set out the issues in detail below".
	Then a little below, paragraph 2.13.8 states:
	"In balancing these arguments, there was a disagreement between the External Reference Group who unanimously wanted the law restoring to its pre-Morgan state of requiring any honest belief in consent to be subject to a test of reasonableness, and the Steering Group. The Steering Group did not take the ERG's advice on this issue but identified an effective way of fettering an inappropriate use of honest belief, without re-introducing the external test of reasonableness that the courts had rejected".
	Finally, paragraph 2.13.14 states:
	"Accordingly we recommend that the defence of honest belief should be expressed in terms of free agreement, and be subject to limitations as to its use. This does not impose an external and objective requirement of reasonableness on the defendant, as our External Reference Group wanted, but it does reinterpret the doctrine of honest belief as set out by the House of Lords in the Morgan judgement, and provides new conditions",
	in which Morgan could operate.
	We have five various reviews, none of which support the proposed change. Some confusion seems to run throughout so much of the reasoning, both in the evidence and the Home Office review itself. The review accepts correctly that knowledge or recklessness is the appropriate test for a conviction of rape, but somehow at the same time criticises the so-called defence of honest belief. What is that defence? It is nothing other than the obverse of recklessness. If the defendant has an honest but mistaken belief, he cannot be guilty of recklessness, and the Crown will have failed to prove what the review accepts is an essential element in the offence.
	In conclusion, I repeat that the Government have not made a case for change. If they have, I do not know what it is. The change they propose is based, I suspect, simply on expediency. It is unsupported by any of the distinguished bodies that I have mentioned and is contrary to sound principle.

The Lord Bishop of Guildford: Perhaps I may be allowed to comment from a different perspective.

Lord Falconer of Thoroton: Before the debate, the noble Lord, Lord Campbell of Alloway, and I agreed that we would deal with these issues during discussion on a series of amendments that are to come. I do not in any way want to inhibit what noble Lords wish to say, but we are slightly approaching this matter with only half the arguments. Members of the Committee will perhaps consider it more appropriate to move on to the next group of amendments in which we can deal with the issue more fully.

Lord Thomas of Gresford: It seems to me that Amendments Nos. 4 and 5 illustrate the difficulties and the unworkability—if I may use the expression of the noble and learned Lord, Lord Lloyd—of these subsections. However, the principle of the objective versus the subjective approach to consent arises directly on this issue.

Baroness Noakes: I support that. I had understood that that was how we proposed to deal with the matter—that is, we would take the principle of objective or subjective tests, then go on to deal with my amendments, beginning with Amendment No. 4, concerning the issue of how "reasonableness" works in practice, and then go on to the Clause 78 amendments. I am sorry if I misunderstood what was proposed.

Lord Campbell of Alloway: I believe that I have been misunderstood—or, rather, the principle has not been but the machinery has. I understood that I would be moving Amendment No. 2, consequential with Amendment No. 3, and, at the end of our discussion today, would ask for it to be withdrawn so that it may be considered on Report. If we reached that stage today, I would then move Amendment No. 6 on the same basis. I was not suggesting, or meaning to suggest, that somehow or other I would pre-empt either noble and learned Lord in anything they wished to do, but that we would certainly have moved Amendments Nos. 2 and 6 by the conclusion of today's debate.

The Earl of Onslow: As someone who is not an expert in this at all but who has been listening with complete fascination—

The Lord Bishop of Guildford: Perhaps I may—

The Earl of Onslow: This is a procedural point. I speak as someone who has been listening with complete fascination to the discussion. My mind is a blank sheet. Members of the Committee may say that it has been that frequently. There seem to me to be two principles. First, do we allow "reasonableness"? If not, then there is no point in discussing the matter further. The noble and learned Lord, Lord Lloyd, raised the question of whether or not we allow it and the matter of the guilty mind. Secondly, if we accept "reasonableness", then we go on to discuss what my noble friend on the Front Bench said. I raise this point in order to make the issue simple for a simple soul such as myself.

The Lord Bishop of Guildford: For the third time of asking, I want to address the issue from a different perspective without approaching it with the expertise that the lawyers bring to it. I wait upon them with regard to the adequacy of the drafting. However, as we attend to the detail of these clauses, it is worth bearing in mind that consent is the very foundation of the public understanding of marriage in public law. It is at the heart of the doctrine of matrimony, as expressed in the law.
	One may not enter into that institution, with all its rights, duties and responsibilities, without there being manifest consent. That doctrine determines the character of the relationship and the institution that then follows. All matrimonial life must operate on the basis of the consent of the parties. Indeed, if one party, in terms of coming together in bodily union, does not offer his or her consent, that is a ground under a number of circumstances for the dissolution of a marriage.
	That doctrine is at the heart of all our law with regard to sexual relationships. The understanding of consent flows out from the public doctrine of marriage to everything else. Whether or not this clause and its subsections are adequately drafted, when it comes to the matter of rape we have a responsibility to be satisfied that we have made adequate provision in public law to demonstrate that consent has been given.
	Even if we believe that these proposals do not quite work in terms of the law—we must listen carefully to what those with experience in this area share with us—nevertheless, if in terms of the practice of rape cases in the courts there is an issue about demonstrating consent, then we have in front of us a very serious matter in law. That is so not only in the narrow terms of the understanding of rape but in terms of upholding the public doctrine that is embedded in our understanding of marriage.

Viscount Bledisloe: I am sure that the interventions of the noble and learned Lord, Lord Falconer, were very well intentioned. I believe, however, that they were confused or at least—to be kind—confusing. The basis of this amendment is that it retains the law as it is—namely, that it is a defence to have an honest belief in consent—and does not impose a new test whereby one is guilty if one is negligent, as the noble and learned Lord, Lord Lloyd, put it. Any question as to what the tests for "reasonableness" are arises only if we have this new definition of the offence. Surely the issue before us at present is whether or not the new idea that the belief must be reasonable is right and should stand.
	Let us be clear. What is proposed is that for rape, and rape alone, the concept of what constitutes a guilty mind will change. If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the general test of the criminal law. It is now said that in relation to rape we should abolish that test and say that it is an offence only if a person showed a reasonable belief that the other party had consented.
	That is a fundamental change in the concept of the law. Why is it said that we should make that change? It is apparently because the conviction rate is very low and, seemingly, the Government are under pressure to change it. The speech made by the noble and learned Lord at Second Reading is somewhat revealing on this issue. He said:
	"At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction".—[Official Report, 13/2/03; col. 771.]
	That is not what he meant. He meant:
	"At the moment, only a fraction of complaints of sex offences recorded by the police end in conviction".
	There is a great danger that we shall forget the very important distinction that not every complaint is valid. The noble Baroness, Lady Mallalieu, pointed out why rape is singularly liable to false complaints. Of course, because the act will also normally take place in private, it is an alleged offence which is singularly difficult to prove. Personally I have no doubt that the reason for the diminishing number of convictions in relation to complaints is that lately people have been encouraged more—I do not disprove this—to complain about date rape, which is much more difficult to prove.
	If something is difficult to prove, that may be a reason to alter the system of evidence, or something of that kind, but it is not a reason to redefine the offence so that something is constituted illegal that previously was not illegal. Perhaps one may use a football analogy without being thought to be frivolous: if not enough goals are being scored, you may change the offside rule but you do not suddenly say that in future a corner shall count as a goal. That is what the Government are doing. They are saying that something which was not a crime before shall now be this very serious crime. They are changing the law in relation to rape and nothing else.
	It is important that we consider that problem before we go on to consider the difficult and fancy problems concerning what shall constitute the test of reasonableness. I suggest that the next two amendments will demonstrate just how difficult a problem that will be and how one will mire oneself, as the noble and learned Lord, Lord Lloyd, said, and the jury in impossible tests. Be that as it may, before we come to that let us consider whether we really believe that it is right that in rape and rape alone an honest belief that one was not committing a crime is not a defence.

Baroness Noakes: Again, I thank my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Lloyd of Berwick, for initiating this debate. It is important that we debate this matter thoroughly. We had a good discussion on this topic at Second Reading. We are not quite re-running that today. At that time we had two camps. There was the lawyers' camp, in which almost all the lawyers spoke, except the noble and learned Lord, Lord Falconer—he did not join the lawyers' camp on that day—which objected to Clause 1(3) and the objective test of reasonableness. Another powerful camp at Second Reading, comprised mainly of noble Baronesses and led by the noble Baroness, Lady Gould of Potternewton, who I am sorry is not in her place, felt strongly that we need to consider changes in the law because of very low conviction rates. As a woman, I too am extremely concerned at such low conviction rates. That is why we on these Benches genuinely think it is worth considering whether there is a better way of formulating the offence which would result in more significant conviction rates.
	Like many noble Lords I am sure we have all had large postbags on the subject of the Bill. I have not had one representation from outside this place which supports the amendment now before the House, which would do away with Clause 1(3). Many of the groups that wrote in, among which, perhaps surprisingly, is the Criminal Bar Association, have accepted the case for the abolition of the Morgan defence. Liberty comes within that category. The Metropolitan Police believe that Clause 1(3) is necessary because the present law weights the process against the victim and in favour of the assailant. I am sure that those noble Lords who received the powerful submission from the Rape Crisis Federation will have read of the devastating effect on women of rape, the trial process and the impact of what they perceive as incorrect acquittals.
	We should not believe that there is a not strong body of opinion which genuinely supports considering ways of amending the law so as to affect conviction rates. I refer not only to the 7 per cent conviction rates from complaints, but also to the high level of acquittals. Nearly 60 per cent of rape cases involving women result in acquittals. We on these Benches do not find that acceptable.
	I shall listen carefully to what the noble and learned Lord says on conviction rates and, in particular, to what the Home Office believes will be the impact of the Bill. There have been many who, if they have accepted the new test, have stated, "But it will not make any difference in practice". We have heard some of that today. That is a serious complaint that needs to be considered. If the proposed change in the law, with all the objections that we have heard, results in not a single extra conviction, there would be legitimate concerns about whether we have taken the right approach. I hope the Minister will be able to comment on how the analysis by the Home Office considered the effect which a change in the law would have had on past cases which have resulted in acquittals or in complaints not coming to trial. Subject to that, we believe that it is worth trying an alternative approach to the Morgan defence, and an objective approach to reasonableness.

Lord Ackner: Is the noble Baroness aware that after the decision in Morgan in the House of Lords—the one that decided that an honest belief was sufficient—there was a prolonged outcry by the public? When the matter went to Lady Justice Heilbron's committee, the assumption was that it would report against that decision. It did precisely the opposite and recommended that the law was sound; that there should be an addition to referring to the evidence of what was reasonable, and that it was then re-enacted. Therefore, perhaps the noble Baroness will agree that the public outcry is not much assistance on these matters.

Baroness Noakes: I was aware of the review which took place after the Morgan case, the outcome of that review and the fact that it resulted in the Sexual Offences (Amendment) Act 1976. However, despite that Act, of which we have now had 25 years' experience, we still have a problem with conviction rates. Therefore, I believe it is legitimate to consider again whether the formulation of the law meets the objectives we require.

Lord Thomas of Gresford: I have already said that we on these Benches do not find the current framework acceptable, and are seeking to find a way to improve the contents of the Bill. Perhaps I may put matters in context. The latest statistics show that of the rapes which result in conviction, stranger rape—that is what many people consider rape to be: an attack in the dark—accounts for only 8 per cent; acquaintance rape, sometimes called by different terms—that can be serious because it can involve a breach of trust or all sorts of problems—accounts for 45 per cent, and marital rape accounts for 45 per cent.
	So, stranger rape is not the problem. In cases of that kind, such are the scientific improvements in detecting DNA and tracing it to a particular defendant that conviction rates run as high as 70 to 80 per cent. Accordingly, that is not the difficulty. Consent does not arise in stranger rape. The issue is generally identity: "Can you prove that it is that person who carried out the attack at night", or whatever the circumstances may be, "on the individual complainant?" The problem arises with consent in acquaintance rape and marital rape, which are very difficult to determine in the absence of other evidence. Bruises are generally not enough. A history may perhaps help. Those who want to banish all history from the evidence in a court before a jury are, in my view, mistaken. Such problems need to be resolved in a sensible way.
	Perhaps the seeds of the Government's position were found in the seminal work of Helena Kennedy, Eve was framed, published in 1992. Unhappily, the noble Baroness is not in this country, let alone in her place. I am sure it will be strange for her to find that the Government follow her views. Generally, she is in opposition to the criminal justice views of this Government. She put the matter simply. I cannot put it better. She said:
	"In criminal law it is quite usual to apply a subjective test in deciding whether an accused intended to commit a crime. The mens rea or mental element of a crime is usually based on the intention of the accused at the time. However, there are significant areas of crime where the law imposes an external gauge as to what is permissible. In self-defence, for example, the level of the force used to protect yourself has to be reasonable. To succeed as a defence to murder, provocation must be words or deeds which would make a 'reasonable man' lose control. The issue therefore arises as to whether there should be a similar rule for sexual offences, with an objective rather than a subjective test. The jury would then be asked whether a reasonable person would have known that the woman was not consenting. The criterion should be absence of consent, not presence of dissent. Making such a change should not be leapt upon in the mistaken belief that it would remedy all the problems, but if a judge had to emphasise to a jury that the man's belief must be reasonable it would undermine the theory that women say 'no', meaning 'yes'".
	The noble Baroness put the issue some time ago. My only problem with that passage is that she refers to "the reasonable person" and the "reasonable man" in one breath and to the reasonable belief of the particular defendant in another. I see an important distinction between those two positions.
	The real problem with subsection (3) is that it brings into this difficult area of law the concept of the hypothetical "reasonable person". Amendments Nos. 4 and 5 ask us to consider who is the "reasonable person"? In some areas of the law the "reasonable person" is a mature man of 40, who is well educated and so on and likely to make the correct decision. But a "reasonable person" so far as a 16-year old boy or an 18-year old man is concerned, may well be someone of his own age, from his own background, who shares the same prejudices, beliefs and signals.
	The problem with introducing this hypothetical "reasonable man" is how to determine who he is. What standard is a jury to apply? That is rather different from looking at the defendant in the dock and saying, "When that person tells us he had an honest belief that the girl consented, was that a reasonable belief?" I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, when he said that he had never experienced a defendant succeeding before a jury with the defence, "I had an honest belief. It was unreasonable. I recognise it now. But at the time, it was an honest belief". In practice, and in my experience, juries would reject such an argument.
	In subsection (3), the Government have chosen the concept of the "reasonable person". We, on these Benches, object to that. "Reasonable belief" is a matter that I shall address in our later amendments. But the subsection as it stands—again I agree with the noble and learned Lord, Lord Lloyd—is unworkable. I believe that it will not increase the conviction rate, but that in the minds of a confused jury it will lead to fewer convictions.

Earl Russell: I apologise that I must leave at five o'clock in order to address a group of sixth-formers. I had not expected the first two amendments to take two hours. I promise to read carefully what is said in my absence, to return to the proceedings as soon as possible and not to repeat myself when I do.
	Clause 1(3) sets an almost insurmountable hurdle. For example, a husband wakes his wife in the middle of the night with John Donne's line:
	"Dear love for nothing less than thee
	Would I have broke this happy dream", and she says to him, "All right, I suppose so". That—in my mind at least—creates a reasonable doubt as to whether she consented. The man who proceeds in that circumstance should examine his conscience. I do not think he should be found guilty of rape.
	To what does the second half of the clause apply? The subsection applies if,
	"A does not act in a way that a reasonable person would consider sufficient in all the circumstances to resolve such doubt".
	There is no action that A can take to resolve that doubt. The only thing that might resolve it is B's body language. Body language, especially of this kind, is not repeatable in court. So, we have a test which simply cannot be satisfied: it is an unreasonable test.
	I also support Amendment No. 6. It would disapply Section 78, which, even as clarified by Amendment No. 398—and it is clarified rather than altered—is entirely unacceptable drafting. Clause 78(1)(b) states that,
	"the defendant is to be taken not to have believed that the complainant consented unless the defendant proves that he did believe it".
	How does one prove that one believes something? One may confess one's faith. One may do so in total sincerity, but by what objective test is anyone in the world ever going to know that one is totally sincere? So far as I can understand, such knowledge, if it existed at all, would be divine and not human. The test is completely insurmountable and it is unreasonable to ask anyone to try to conduct it.
	I am a little anxious about the treatment of sleep. Again I accept the general thinking behind the Bill; that having intercourse with someone who is asleep should in normal circumstances be regarded as an offence because consent cannot be given. However, there is one particular circumstance which to my knowledge has arisen in court and has become an issue, where the couple had had consensual intercourse and fallen asleep in bed side by side.
	In the middle of the night the woman reached out and made a gesture of affection, which the man interpreted as a gesture of consent. But it was not. She woke in the night, too drunk to remember how she got there, and screamed rape; as one might if one woke in the middle of the night and found a strange man beside one. But, until the lady indicated that she did not consent, there was a rebuttable presumption that she did. If a man makes love to a woman and goes to bed with her and falls asleep with her, he is entitled to presume that she consents until she tells him otherwise, and no longer. So the treatment of sleep in cases where there has been consensual intercourse immediately beforehand cannot be the same as the treatment of sleep in other circumstances.
	I have a good many more criticisms of Clause 78, but under the circumstances I hope the Committee will forgive me if I do not make them now.

Lady Saltoun of Abernethy: The moving of the burden of proof from the prosecution to the defendant, which is what Clauses 1 and 78 do, is in my opinion totally indefensible. It is especially so in a situation where in the nature of the crime there are unlikely to be any witnesses for either side.
	There are in this world some women who lead men on and then, at the last minute, say no. There is a rude, colloquial name for them, which I should not dream of using in your Lordships' House, but your Lordships all know what it is. Afterwards, they may cry rape. How is the defendant to defend himself, if he has to prove that he believed his intentions to be acceptable when the girl denies it? Who is the reasonable person in that instance?
	I can sympathise with those who are concerned about low conviction rates, but do they want to increase them by convicting innocent people? I entirely support the views of the noble Earl, Lord Russell, about rape when the so-called victim was asleep.

Lord Ackner: There has been frequent reference to the low incidence of conviction. Perhaps I may offer some suggestions as to the causes. They are many and complex. Some of them are easier to understand than others.
	My first example is the simplest in the world. Your Lordships may have heard the phrase, "If you pay peanuts, you expect monkeys". That is exactly what the prosecution did. The prosecution paid the Bar to prosecute considerably less than legal aid paid to defend. When it became apparent that as a result the experienced Bar refused Crown Prosecution Service briefs and only the young, inexperienced person came to be faced by an experienced opponent, the CPS realised that that had to be dealt with.
	That was dealt with by the Treasury in the usual way—there are no prizes for the answer. The graduated fee carefully negotiated with the Lord Chancellor's Department for the defence was reduced by 10 per cent, so that that 10 per cent could be added to the fees paid by the Crown Prosecution Service. Thus, that reason for the high incidence of acquittals was dealt with.
	The second reason is that no filter system is now operated by the Crown Prosecution Service. In practice, before corroboration was abolished, one needed to be able to show a good, arguable case. That is no longer the case. If the allegation is made, it is politically incorrect not to allow it to go to trial. So weak cases have been allowed to come to trial and, as a result, many of them have failed.
	The third reason is that some complainants wrongly believed that, in order to establish rape, they must have struggled violently. So, in order to gild the lily, they told the jury that they had struggled violently. In due course, the defence produced underwear that showed that not a stitch had been disturbed and established that the complainant had been gilding the lily. As a result, understandably, they did not believe her.
	The next and fourth reason—we all know all about this and nowadays frequently read about it in the newspapers—is that false allegations are made from time to time. There are a variety of reasons for that. The woman may have been rejected. It may be jealousy. She may have some psychological hang-up. Ultimately, she confesses to that and the case collapses. Your Lordships may remember that in A Passage to India the heroine had the false feeling that she had been raped by the Indian, but eventually had to admit that it was all an illusion.
	The fifth reason is that there has been a radical change in social mores. In the university to which I went—and, no doubt, at other universities at the time—sex was referred to cheerfully as the best indoor sport. Now, it is so often a casual pastime. Some of your Lordships may have come across the programme called "Three-minute Dating", which is a new method of ensuring that people meet quickly to go about whatever activities they want. Sleeping around is especially the result of drinking too much or taking drugs. In that situation, the jury does not believe that the traffic lights changed from green to red without an intermediate amber.
	Sixthly, a small number of cases involve husbands and wives or cohabitees. In such cases, the jury know, because it is so often stressed, how very serious is a rape case in regard to the sentence that may be imposed—five or six years as a starting point. In some such cases—maybe very few—the jury think such a result entirely disproportionate to what happened.
	Then, seventhly, there is the law of unintended consequences. Nowadays, a vulnerable complainant can give her evidence on video. She is never seen by the jury, yet the jury must weigh up her unseen evidence against the evidence of the accused. How can they in such a situation be sure that the defendant is guilty?
	Finally, and most important of all, there is the burden of proof. I do not believe that the phrase "reasonable doubt" is any longer frequently used. The jury are told, following a decision made by Lord Chief Justice Goddard, that they must be "sure". Having to be sure is a very high burden. The jury can say among themselves, "This probably happened, but we have been told that that is not enough" or "It is very likely that the complainant is telling the truth, but that is not enough; we must be sure of the case".
	Those are some examples of explanations for the low incidence. I agree with my noble and learned friend Lord Lloyd, and do not believe that there are cases where a man asserts a totally unreasonable—perhaps honest—belief that is accepted by a jury. That is particularly so now that the jury must be told in terms that they must take into account the whole of the circumstances and whether it appears to them to be reasonable for such conduct to have taken place. I hope that I have assisted to some extent on a subject that seems to be shrouded in mystery.

Baroness Mallalieu: As I understand it, we are trying to improve, in particular in Clause 1, the legal definition of rape so that any existing loopholes are closed, and so those who commit the offence can be convicted. I am concerned by what I have heard from several noble Lords about the lawyers' approach as opposed to the Baronesses' or women's approach. Two powerful contributions were made by my noble friend Lady Gould and the noble Baroness, Lady Howarth.
	That is the background. But we are producing the tools that people such as me—the lawyers—must try to use in the courts. We need clarity, simplicity, and, when dealing with one of the most serious criminal offences, a powerful and high-level test to be applied before people can be convicted. We need a guilty mind—mens rea. It is a cardinal principle of serious crime that the mind must go with the act. Yet this clause would remove that and, as the noble and learned Lord, Lord Lloyd, said, make negligent rape an offence, which it is not now. Therefore, we are proposing to take out a crucial safeguard for people accused of serious crime, greatly complicating the task of lawyers and judges in directing the jury, and, ultimately, that of the jury itself.
	Time and again, after Bills have passed through this House and another place, I go to the Old Bailey and people ask me, "How on earth did you allow that to get through? How have you allowed them to muck things up again?" One of the areas that have been mucked up is the concept of the reasonable man, which has caused enormous difficulties in law, particularly in relation to provocation, and is not resolved.
	Yet, while trying to simplify things, we are introducing in Clause 1 a double complication: not only will the jury have to be directed that they must try to decide what a reasonable person would think about the complainant's consent or lack of it, but, if they find that there would be doubt in the mind of a reasonable person, whoever he may be, they must decide what a reasonable person would consider sufficient to remove the doubt. The ramifications—the hurdles and tests that the jury would have to apply—are complicated. The reasonable man is being introduced apparently to try to simplify the position. He comes with his partner in confusion, the shifting burden, which will arise later. The judge's task would be greatly complicated by what is presented.
	Why is it being done? I must say, particularly in response to the noble Baronesses' earlier contributions, that it is being done for cosmetic reasons. It will not increase the conviction rate one jot. Like other noble Lords who practise at the Bar, I have never come across a rape case won on the basis of a mistaken but honest belief that there was consent. It happened in the case of Morgan; clearly it can happen, and the direction is given, but I have never heard anyone describe a case on that basis.
	So what is the effect of what we are arguing about now and have been arguing about for so many minutes? We will produce something cosmetic for the women's pressure groups. We will produce complications that will lead in some cases to a wrongful conviction. The case will then proceed to the Court of Appeal, and, it is hoped, will be rectified. We will produce a better definition; it will be worse than before. I understand the Minster's difficulties. He is faced with pressure to do something and is looking hard for a way of doing it. The noble Baroness, Lady Noakes, made much the same point, saying that we should try the approach and see what happens. But every time we try to mess around with the law and disregard the legal views on the matter, I must go down to the Old Bailey and have people say to me, "This is a nonsense; how on earth can we work with these tools?"
	I ask the Minister to look carefully again at the matter. Once the reasonable man comes in, we enter a whole area of difficulties that so far have not affected the rape definition. If there were a pay-off—the reward of the conviction of people who now wrongly escape conviction—that would be fine. But I cannot see it here. I would also like to hear the answers that the noble Baroness, Lady Noakes, sought about conviction rates. What we are about to do is both potentially dangerous and wrong.

Lord Carlile of Berriew: Like the noble Baroness, Lady Mallalieu, on the issue of principle I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick. I shall not weary the Committee by trying to repeat his cogent explanation of those principles. It is implicit in what the noble and learned Lord said that the statistical problem so recently highlighted by the noble Baroness, Lady Mallalieu, will not be changed by the provisions. However, I disagree—I shall explain why in a moment—with those who say that one cannot envisage cases in which manifest injustice could be perpetrated by what is proposed, particularly the third-party provisions in Clause 78.
	I regret to tell noble Lords that I, too, speak as a legal practitioner who has occasionally gone far and wide into the regions of this country. Indeed, I have often had to argue these issues in the legendary Mold Crown Court, where juries consider matters in their own idiosyncratic way. In most rape cases where there is a defence, it is approached from three positions. First, did it happen at all? In many cases it is denied that sexual intercourse took place. Secondly, was it the accused who had sexual intercourse with the complainant? That is not such a problem these days because of the availability of DNA profiling. Thirdly, was there consent? I estimate that 97 or 98 per cent of rape cases are decided on issues of that kind. The statistics cover thousands of cases. The acquittal over a 10-year period of two or three people who do not have mens rea would not affect those statistics one iota. But there remains the potential for injustice. I suggest that it is the responsibility of this House, with its informed membership, to ensure that such injustice does not take place.
	I refer to a practical issue, repeating a question that I asked at Second Reading. Probably because I did not make the question clear, the noble and learned Lord, Lord Falconer, did not answer it. I ask him to consider it afresh and to give us an informed answer. Several noble Lords have already raised the complexity of the tests set out in Clauses 1 and 78. At Second Reading, I asked—and the noble and learned Lord, Lord Lloyd of Berwick, repeated the question—whether the Judicial Studies Board had been consulted. Will the Minister tell the Committee whether the Judicial Studies Board has been consulted? It is an important question. Why? Because the Judicial Studies Board produces specimen directions that are used by every responsible judge in almost every case where the particular crime is charged.
	The specimen directions are drawn up by two circuit judges. They are practical people with everyday experience of directing juries. Have those judges been asked, through the Judicial Studies Board, to produce specimen directions, so that legislators can consider whether the provisions are workable?

Lord Ackner: I can assist the noble Lord. I got in touch with the Judicial Studies Board on that point. I was told that the Judicial Studies Board was never asked to comment on legislation going through the House. The legislation is served up, and the board is then obliged to make the best that it can of it. It has no say in the policy of the legislation or its intelligibility; it must just make the best of a bad job.

Lord Carlile of Berriew: I am grateful to the noble and learned Lord. I do not suggest that the Judicial Studies Board should be a participant in the production of policy. That is not what I propose. I am suggesting that the Judicial Studies Board, particularly those who draw up specimen directions, should try to produce a template, so that the legislators—ourselves and those in another place—can decide whether the apparently impossibly complex provisions are workable. My belief is that they are not. They will make the already over-complex direction on self-defence look like simplicity itself.
	While we are on the subject, I must respectfully correct my noble friend Lord Thomas of Gresford. In the direction on self-defence, there is not merely an objective test; there is an important subjective element. I gave the direction myself last week, sitting as a recorder. It goes something like this: "Members of the jury, if you think that the defendant may have done no more than what, in the heat of the moment, he thought was necessary, that is powerful evidence, you may think, that he acted in lawful self-defence". If that is not included in the direction, the defendant's conviction will be overturned in every case in the Court of Appeal.
	My noble friend, in quoting from the book written by the noble Baroness, Lady Kennedy of The Shaws, referred to provocation. The provocation test is no longer an objective test; there is a high level of subjectivity in it. Amendments Nos. 4 and 5 in the next group, I think, reflect that element of subjectivity. There is no serious crime in which the serious element of a guilty mind—what the noble and learned Lord called the "golden thread"—has been abandoned. That would be a dramatic precedent.
	My first question is whether anything has been done to address the complexity of what is proposed. I believe that it has not. What the noble and learned Lord, Lord Ackner, said bears that out.
	In raising my second point of substance, I must declare an interest as vice-chairman of a small mental health charity. Those who suffer from mental illness, personality disorders and similar conditions are vulnerable. Care in the community is a wonderful thing for those who find themselves in protected circumstances, but it is also a dangerous thing for many. I shall give the example of a vulnerable, learning disabled adult who could easily find himself in the sort of situation that might lead to a wrongful conviction of rape. The Government must be able to address the issue, if they insist that their proposals must become law. Regrettably, it is the experience of those of us who enter the criminal courts regularly that we should never be surprised at the behaviour of the human being and that truth is stranger than fiction. We observe such things on a monthly—if not weekly—basis.
	The sort of scenario that I will posit is far from exaggerated. A learning disabled adult may be used by a group of yobs as a sort of plaything, and they put him in a situation in which he—not they—is persuaded that the woman who is undoubtedly raped wants to be raped. He does as they bid him. What is his belief? His belief—in the real world of a very small number of learning disabled people—is that he is doing something that he is allowed to do, something that he has been encouraged to do and something that, in so far as he understands the concept, it is lawful to do and that he is honest in doing. Is a person in that situation to be convicted of rape and made subject to a potential sentence of life imprisonment? If so, it is serious discrimination against people who are learning disabled and could result in injustice to a small number of people. It will affect a tiny number of people, but, even if it happens only once in 10 years, that is once too often.
	Another example, also taken from the field of mental illness, is related to the fact that those who suffer from mental illness are often well for a large amount of time and lead an apparently normal life. However, in some conditions, such people may be very occasionally subject to florid explosions of their mental illness. Such florid explosions of mental illness can lead to entirely bizarre beliefs, which may be permanent or temporary. Among those may be the belief that a woman who is in no realistic way consenting to sexual intercourse is, in fact, doing so. Should such a person be convicted of rape, when he has no guilty mind and what has occurred is demonstrably the result of an illness that he had at the time that he committed the act?
	In this country, where the golden thread that has been referred to has survived for a long time, we should not allow political correctness to destroy the civilised assumptions that we have made and sustained over hundreds of years. That is what is proposed. When, on this group or a later group, the Minister responds to the debate, he must deal specifically with the way in which the Government will address the problem of mentally ill people who may find themselves—albeit very occasionally—in the position that I described.
	I agree with the right reverend Prelate that the essence of any sexual relationship, even if it is what is unattractively called a "one-night stand", is that there should be consent. There should be a contract, as in marriage. However, that does not mean that it is right to criminalise every situation just because the person on the Clapham omnibus would not regard it as consensual. We tread a dangerous path, if we go down that route.

Lord Morris of Aberavon: I shall ask two questions. As a member of the criminal Bar, I am in sympathy with the Government's aim of reducing what is regarded as an unacceptable rate of acquittals. The figures for cases that do not involve stranger rapes are intolerably high.
	The problem is how to tackle it. I am concerned whether this is the right way. My first question is: why do we have such a high rate of acquittals? The noble and learned Lord, Lord Ackner, touched on many reasons, but on one in particular. I seek an answer to this question. Is the test for launching a prosecution the same as for all other offences? There are two tests. The first test is that of public interest. The second is whether there is a reasonable prospect of conviction.
	Certainly, if the figures mean anything, a reasonable prospect of conviction does not manifest satisfactory completion of that test. Will the Minister tell us whether there is an element of political correctness once a complaint has been launched or is rape treated these days in exactly the same way as every other offence? If it is treated in exactly the same way, someone who takes the decision to prosecute takes a view different from what the eventual figures manifest as regards a reasonable prospect of conviction. They are wholly different, as we all know.
	The second question has also been touched on by noble Lords. What is the expected change in the conviction rate if we pass this part of the Bill? In all the Home Office studies, there must have been a great deal of thought on this issue. Otherwise, I should hope that the Government would not have embarked on this at all. Members of the Committee need, and deserve, a clear indication. If not, our task would not have been worthwhile and it could lead to the conviction of the innocent. That is the last thing that we need.
	Finally, the noble and learned Lord, Lord Ackner, has assisted the noble Lord, Lord Carlile, as regards the role of the Judicial Studies Board. We are grateful to him for having explored that issue and assisting the Committee. Having spent some time directing juries on many kinds of offences, it would be helpful if we had a specimen direction, as asked for by the noble Lord, Lord Carlile, and if it was made available before the next stage.
	That is all I wish to put before Members of the Committee. The test of a reasonable person has always troubled the courts in so many spheres. The noble Lord, Lord Carlile, again mentioned the involvement of a person who certainly is not a reasonable person in that context; he is a very unreasonable person. Therefore, he might be inclined to take a different view. Indeed, on this particular test, the jury would take a wholly different view as regards his guilt; whereas, in fact, he may not, by ordinary standards of people, given his vulnerability and his deficiencies, be likely to be convicted of an intention to commit that offence at all.

Lord Alexander of Weedon: I apologise to Members of the Committee that I was unable to take part at Second Reading. That is one reason why I wanted to listen carefully to this argument. I declare an interest as chairman of Justice, the all-party law reform group. The members of Justice are—as those of your Lordships who have received copies of our briefings will know—divided on the principles underlying this clause. That I fully understand. I readily recognise, as my noble friend Lady Noakes said, that there is a strong body of opinion that supports change. I recognise that this is an issue of real sensitivity. Undoubtedly, there are the genuine feelings and reactions of many people—not just women—that the concerns of women are taken too lightly by men and that juries tend to lean too readily against conviction.
	Against that must be set—I now express a personal view—the sensitivity, which should not be scouted down because it is expressed largely by lawyers, of respect for the principles of the criminal law. Those have been fully set out by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Mallalieu. I do not seek to repeat them. However, we should be very careful before we depart, in the case of a serious offence, from the underlying principle that guilty mind or intent is at the heart of criminal law.
	If there were more time, there would be some cogent passages to that effect from the case of Morgan that I should wish to cite. But I shall confine myself to drawing attention to one statement in the Law Commission consultation paper in which it stressed:
	"Mere negligence, in the sense of failing to realise what a reasonable man would have realised, could not possibly suffice to found criminal liability".
	Yet it is entirely that approach which the Government now adopt. They do it in a way which seems particularly concerning. As I read Clause 1(3), it creates a completely objective test that must be answered in two separate parts. The first part is whether a reasonable person would, in all circumstances, doubt that there was consent. The second part is whether a reasonable person would consider the steps taken by the accused were sufficient to resolve the doubt. Therefore, there is a double test of objectivity included.
	Will the Minister indicate whether he finds such a test present in any other aspect, even less serious, of the criminal law; or, indeed, whether he can think of an analogy within civil law? The concept of the doubt test of reasonableness also seems to emphasise the point being made eloquently by those more experienced in this field than myself, including the noble Lord, Lord Carlile, of the difficulty of directing a jury in this area.
	There are others, particularly on the Cross Benches, far more qualified than I to indicate whether this would be a direction that would be practical to formulate and for a jury to comprehend. They, too, will potentially have views on whether the attempt to formulate such a direction might confuse the jury or lose its sympathy to such an extent that the level of convictions would drop. These are reasonable fears. It has been helpful that the position of the Judicial Studies Board has been clarified. But I should like to ask the Minister, what is the procedure on these occasions for consulting the judiciary? For example, was the Lord Chief Justice, on behalf of the body of judges, consulted before the publication of the Bill in order to have comment on the benefits of a change in the law and what I would call the workability? Were the judges asked whether they would welcome a situation in which a special verdict might be needed so as to decide what was the gravity of the offence in order to sentence the accused?
	At present, I feel diffident in departing from the test put forward in Morgan. In one sense, I wish that it could have been debated in parallel with Amendment No. 8 tabled by the noble Lord, Lord Thomas, which suggests some change in the law, which might, arguably, be more reasonable. That, as I understand it, was the proposal broadly put forward by the sexual offences review and which I think has been adopted in Canada. But if the choice came between the present clause and leaving the test in Morgan, I would have no hesitation that there should be no change to the law. Ultimately, I should like to reserve my thoughts and views on whether it is possible to go along the route put forward by the noble Lord, Lord Thomas, in recognition that there is an issue on which people on the other side of the argument from the existing law feel strongly.

Baroness Howarth of Breckland: I stand as a social worker, a woman, against the lawyers. I am not sure where that puts me, but it does not put me on an emotional plane making an emotional argument. I want to make a reasoned argument on behalf of women. That puts me in difficulty, because, as I said previously, I have been aware of many women and young people who have not won their case because of difficulties and technicalities within the law once the Crown Prosecution Service has tried to take the case forward. Therefore, I am keen that whatever law we ultimately pass wins their case. I listened with great care to the noble and learned Lord, Lord Lloyd, who has great experience.
	As I have been put partly on the other side of the fence, as it were, I want to address a couple of issues. First, I want to take out of the debate the phrase "political correctness". It is a great pity that in discussing these issues and the rights of women, we suggest that they may be concerned with, in the strange phrase, "political correctness", which these days has a slightly derogatory feel about it. That is extraordinarily hurtful to the kind of victims I spend my life with: they want nothing to do with political correctness, they want their rights to be heard and a response made to them.
	Secondly, as I said to the Minister in a preliminary meeting I was able to attend, I do not believe that the Bill can attend to many of the difficulties we face. Had we managed to introduce the matrimonial causes legislation, which contained a great deal about mediation, we might have been able to deal with some of the family situations now going to court—indeed, they might never have gone to court had we had experienced people able to deal with them.
	However, I remind the noble Lord, Lord Thomas, that the same figures could be held for murder and assault as for rape in domestic circumstances. Therefore, we should not treat those situations lightly—

Lord Thomas of Gresford: I do not treat those situations lightly at all. I consider that in the marital situation there is a great deal of violence. I have been practising for 40 years—both prosecuting and defending—and I know entirely the whole scene. I therefore resent the suggestion that I am taking it lightly.

Baroness Howarth of Breckland: I apologise if I gave that impression. I was simply trying to illustrate that people face a wide range of difficulties and that this situation fits into the same category. I was simply using that positively rather than negatively. I hope that the noble Lord will accept my apology if I did not say the right thing.
	My real intention in rising to speak is to say that it would be a great pity if we did not end up with some change in the law. There should be some change which makes it easier for these cases to be properly tried and heard. Women should be sure that their position will be made clear and the defendant will also be heard. I have also counselled men, so I do not spend my time dealing only with women. In these situations, it is often difficult to sort out the issues and therefore it would be most helpful if we could look at the matter in a way that would take us forward. I have not yet looked at the amendment tabled by the noble Lord, Lord Thomas, but I should be sad if we lost the whole argument and all the proposed changes and if nothing happened for these women.

Baroness Carnegy of Lour: The debate has been conducted largely among professionals and it has been most interesting and informative from my point of view. However I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women.
	I find that most women are extremely suspicious of what women are saying in rape cases, as are many men. They are naturally suspicious, a situation which I met in early stages on the Bench but mostly by observing my own locality. I do not believe that the Government will achieve much with juries unless they can overcome their difficulties. They certainly will not overcome them by extending the offence of rape.
	Achieving more convictions is about enabling juries to understand when someone has committed rape. The lawyers who have spoken—and we have among them the greatest in the land—are explaining how they do that. But ultimately it will be enabling the juries to understand. Like the noble Baroness, Lady Mallalieu, I am sorry that a distinction has been made between the lawyers versus the ladies. I am not one of the ladies and I am not one of the lawyers, but I am an observer of the public. I believe that the Government may be barking up the wrong tree in trying to find a way of helping juries in court to understand whether someone has been raped. I suggest that they should look carefully at whether they have got the right answer and whether subsection (3) will help juries. As a non-professional, I cannot understand how it will. I believe that the Government may have got the wrong political answer to an important legal question.

Lord Mackay of Clashfern: It would be extremely useful if the noble Baroness, Lady Howarth of Breckland, could indicate to the Committee the types of technical problems, to which she referred, experienced by those she has counselled. The perception of those technical barriers may help us to decide whether what is being proposed will meet that type of objection.

The Earl of Onslow: As an open and blank mind which has listened with fascination, I have one question to ask. When someone says that he wants to achieve more convictions, does that mean that the courts have so far been wrong in acquitting defendants? If the convictions were right—7 per cent of cases were successful and consequentially 93 per cent were failures—does that mean that the 93 per cent of defendants were unlawfully or wrongly acquitted? To say that we need more convictions per se is not a judicious way of proceeding.

Lord Campbell-Savours: I want to intervene only briefly. I spoke on Second Reading as a non-lawyer, but I have strong views based on a case I followed in detail some years ago. My noble and learned friend Lord Morris of Aberavon asked a question which is particularly pertinent. It was: is it the view of the Government that there will be an increase in the number of convictions arising out of the principles enshrined in the legislation? I understand that that is what has motivated those who are behind the legislation in bringing it forward. The conversations I have had with people in the legal profession lead me to believe that the legislation will not increase the rate of convictions; it will decrease it.
	This morning I had an interesting conversation with Jonathan Davies, a barrister who may well be known to some noble Lords. I should like to read an excerpt of an article that he wrote on 14th April last year in the Mail on Sunday which I regard as interesting. It raises issues that the Committee should address when dealing with legislation:
	"One spring afternoon two years ago, I cross examined a young woman in a date-rape trial. As I did so it became clear to me that she knew her complaint would not succeed, and she knew I knew it . . . It was a deeply uncomfortable situation, one which barristers across the country have had to become accustomed to in recent years. For a significant number of 'date rape' cases, where a woman is sexually assaulted by a friend or colleague, are being brought into courtrooms despite the fact that they have no hope of success . . . This is a pattern I have become all too familiar with in my lengthy career as a criminal barrister and Crown Court recorder. All 16 rape cases I defended recently at a North London court resulted in not guilty verdicts. None of them should ever have gone to court. So why is it happening?
	"Until the Criminal Justice Act in 1994, juries were warned by a judge of the 'danger' in convicting in rape cases where there was no supporting evidence. This rule was considered objectionable and demeaning to women so the law was changed. However, today we seem to be faced with a situation where a case can go to court with no supporting evidence of any sort but the woman's complaint. And as rape normally carries a sentence of at least four or five years, juries are reluctant to convict a man unless they can find something tangible that helps them".
	He lists a series of circumstances in which that might be the case, and then goes on to say:
	"I have seen all these [the circumstances to which he referred] and used them, in favour of women, when I have been prosecuting. But all too often, when I open the brief there is nothing. So who is responsible for bringing these cases to court? The blame lies with the police and the Crown Prosecution Service (CPS), who are currently too afraid of the rape lobby to throw out an insubstantial case. The rape charities and campaigners have tremendous power. People and parliaments will always listen to them and no one is willing to contradict their views because rape is such a terrible crime . . . So what can a woman do?
	He sets out once more the relevant circumstances.
	This criminal barrister believes that the Bill we are currently dealing with will not sort out the problems he faces in court when he is prosecuting. He believes that it simply will not work and that it may well lead to further acquittals where an acquittal might not be the right way to proceed. His view is that the problem rests with juries. In cases where it is the word of one person against another, more often than not—indeed, almost invariably—juries will never convict. Why are we bringing "word against word" cases to court? Why are we spending vast amounts of public money on bringing such cases to court when what they need is the critical additional component of corroborative evidence?
	All I can say to Ministers is this: please understand that if the intention is to increase convictions, the Bill may fail in exactly the same way as the change of law on corroboration did in 1996, in so far as it did not work in the way that Ministers intended. I have been told that when it was no longer necessary to deal with the issue of corroboration, juries compensated by having in their minds a need to balance the consideration where otherwise it would act against the interests of the defendant.
	Let us not once again introduce a change in law which has the reverse effect from that intended.

Lord McCluskey: As a Scot, perhaps I may be allowed to join in the debate. I am emboldened to do so having heard my friend the noble and learned Lord, Lord Mackay of Clashfern, make a point. First, however, I wish to support a point made by a number of noble Lords, and most recently by the noble Baroness, Lady Carnegy of Lour.
	I have almost 50 years of experience in the criminal courts in Scotland, where we do not have a similar statutory provision. Around 19 of those years were spent on the Bench, directing or charging juries in criminal trials, many of those being rape trials. It is the duty of the trial judge to try to ensure that the jury understands the legal context in which the case has to be decided. If I had this provision before me, I would feel it necessary to explain to the jury all of the following points. In regard to Clause 1(1)(a), I would feel it necessary to explain what is meant by "intentionally". I would feel it necessary to explain what is meant by "penetration", which noble Lords will see is defined in Clause 81(2) as including "withdrawal", and which I would also feel it necessary to explain.
	I would feel it necessary to define what is meant by "the vagina", which is defined in another subsection as "including the vulva". I would feel it necessary to define what is meant by "consent". I would feel it necessary to say something about the meaning of "belief". I would think it necessary to say something about what is meant by the concept of "giving no thought". I would feel it necessary to instruct the jury about the meaning of the words in Clause 1(2),
	"whether B consents, or otherwise".
	I would find it necessary to explain the meaning of "a reasonable person". I would find it necessary to say a word or two about "doubt". I would find it necessary to explain the word "sufficient" in Clause 1(3)(b), in particular in reference to later provisions in Clause 78, about what is and is not meant by "sufficient"; and I would find it necessary to explain the meaning of "reasonable doubt".
	The number of errors that I could make in the course of attempting that exercise is legion, while the number of appeals that would arise out of my mistakes would be equally legion. I am concerned that, ultimately, we would put an enormous burden on to the Appeal Court without clarifying the issues in the minds either of jurors or of the general public. Thus I fear that this provision will fail in its intended effect.

Lord Cameron of Lochbroom: Before the noble and learned Lord sits down, I should like to ask him a question. He indicated that he has charged many juries on rape cases north of the Border. I wonder whether his experience is similar to mine; namely, that on very infrequent occasions have I ever had to deal with the issue of "honest belief".

Lord McCluskey: The short answer to that question is that I have never, in my entire experience as a prosecutor for over 12 years, as a defence counsel for many years and as a judge for some 19 years, encountered that defence.

Lord Lucas: I wish to make two brief points. First, I want to encourage my noble friend Lady Noakes not to disparage professional views. She has, as have I, spent most of her life working as an accountant and thus putting great weight on what accountants have to say. I have argued for a long time over financial affairs, but ultimately you must give in. For the most part, when accountants say that something is impracticable, they are right. Also, it can be dangerous to go against their advice.
	Secondly, I do not think that it is a good idea to introduce the concept of "reasonable" into long-standing human relationships. Many of the cases we are considering here concern incidents that take place within the context of relationships that have been running for a good long time. Human relationships are varied and extremely strange when looked at by an outsider. Trying to view other people's relationships as something inherently reasonable is, I think, mistaken. People have their own ways of living and working things out, in particular within close relationships. Surely it is better to concentrate on the facts of the case rather than to introduce a strange third party, as if there was an objective view of human relationships.

Lord Falconer of Thoroton: I agree with the noble Viscount, Lord Bledisloe, that my earlier intervention was confusing and confused. We have had an extremely helpful debate on the principle. I congratulate the noble Earl, Lord Onslow, for spotting that it was worthwhile to debate the principle of whether or not one should import an objective element into the defence of consent. The issue arises not only in cases of rape but in cases of sexual assault and penetration.
	The issue we are debating can be summarised as follows. No crime currently is committed where a person is forced against her will to have sexual intercourse with a person who can convince a court that he honestly interpreted whatever happened as consent to sex however unreasonable such a belief might be. Should that remain the law, or are there benefits in changing the law?
	At this stage, I shall not debate the precise detail of how to introduce an objective element; the question is whether or not an objective element should be introduced. We believe that it should be, for two reasons. First, it is a more just approach; secondly, it is likely to produce more convictions. However, I am not able to say what the increased number would be.
	I thoroughly endorse what the noble Baroness, Lady Howarth, said—namely, that this is not a dispute between the lawyers on the one hand and the Baronesses on the other. This should be an earnest endeavour by all of us to find the right answer. It is not only lawyers in this country who are fairly divided in their views. For example, the Criminal Bar Association does not oppose the introduction of an objective element and many other common law and other jurisdictions throughout the world have introduced an objective element in relation to the law of rape and other serious sexual offences. So let us be under no illusion that it is only the lawyers who wish to keep the law as it stands; they are themselves divided.
	Equally, we should not think that, because the wholly admirable Mrs Justice Heilbron in the 1970s took the view that there should not be a change, the position has stood still since then. We need to look at the question afresh and come to a reasonable conclusion.
	What are the arguments for introducing an objective element? The Law Commission, when referring to the purely subjective rule, stated:
	"we think it would be remarkable if the Morgan rule"—
	which is the purely subjective rule—
	"did not sometimes have the effect of encouraging a jury to accept a bogus defence".
	So objective analysis suggests that if one continues with the Morgan defence it will lead to acquittals where there should not be acquittals.
	What does justice suggest is the right answer? The mistaken belief will often arise in a situation where it is easy to seek consent and the cost to the victim of the forced sexual activity is very high. It is not unfair to ask any person to take care to ensure that his partner is consenting and for him to be at risk of a prosecution if he does not. It easy to raise the defence of mistaken belief in consent but very hard for the prosecution to disprove it.
	There is no justice in a situation where a person who has been raped, or subjected to other forced sexual activity, sees an assailant go free because of a belief that society as a whole would have found unreasonable or completely unreasonable or totally unreasonable. In considering where justice lies, it is important to consider not only the interests of the defendant but the interests of the victim. In circumstances where the defendant has behaved wholly unreasonably in believing that there is consent and could have taken steps to put the position beyond doubt, where should the risk lie? Should it lie with the victim who has, through her own experience, been raped in the sense that she has sexual intercourse forced upon her without her consent; or should it lie with the defendant who, although extraordinarily unreasonably, honestly believed that she consented? The defendant would be acquitted, rightly, under the current law—but, we would say, wrongly as a matter of justice—whereas the victim will suffer from the humiliation of being raped and not receiving justice.
	It is a difficult balance. It should not be determined by political correctness but by something that reflects people's understanding of what is or is not just. I am struck by the fact that the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Mallalieu, all say that where the belief in consent is wholly unreasonable the jury will not acquit. If noble Lords believe that, surely the right course for the Committee is to ensure that, with simplicity, that approach is reflected in the law.
	The noble Lord, Thomas of Gresford, believes that that is right; the noble Lord, Lord Alexander of Weedon, believes that that is right. They question whether the method by which we seek to achieve it will deliver that result, but in terms of increasing legitimate convictions—by which I mean defendants are convicted because they have committed the wrong—and in relation to delivering justice—by which I mean ensuring that rape victims feel that the system understands their predicament and produces a just result—the change to introduce an objective element is the right approach.
	My noble friend Lord Campbell-Savours and the noble and learned Lord, Lord Morris of Aberavon, legitimately asked why so many cases are failing. Let me be clear about the statistics. Seven per cent of reported rapes end in a conviction; many cases do not lead to a charge being brought or continued with by the Crown Prosecution Service; the rate of conviction in respect of charges pursued and brought to court is about 45 per cent. It is important to be clear about the figures. The Crown Prosecution Service is obliged to address such cases in the way it addresses every other case—that is, there must be more than a 50 per cent chance of success and it must be in the public interest for the case to be brought. There is no difference in the approach to these issues from the approach to any other issues.
	As to the approach of the Judicial Studies Board—which I believe to be correct; I make no complaint—it will not produce standard directions until it sees the final form of the Bill; that is, when it becomes an Act of Parliament. The senior judiciary responded to Setting the Boundaries shortly before the Bill was introduced. I have had conversations with the senior judiciary about the detail of the provisions subsequent to the publication of the Bill.

Lord Lloyd of Berwick: Did I understand the Minister to say that in 45 per cent of cases brought to court there is a conviction? If so, why does he believe that figure is too low?

Lord Falconer of Thoroton: There is an issue both in relation to the consideration given to whether or not a charge should be brought and in relation to what happens when the case gets to trial. At both stages the law needs to reflect what we would regard as a sensible position. As to whether the conviction rate is too high or too low, I believe that 45 per cent is too low.

Lord Carlile of Berriew: Can the Minister confirm that he means that nobody has been asked to produce a specimen direction, despite requests being made on Second Reading that this should be done, and therefore nobody has tested whether such a specimen direction would have the sort of technical problems of which the noble Baroness, Lady Howarth, rightly complains?

Lord Falconer of Thoroton: The Judicial Studies Board has not; other people have been asked, including the noble Lord, Lord Thomas of Gresford, and counsel on behalf of the Government. We need to see what the Bill looks like later on. I think that after Committee is the time to produce a specimen direction. The amendments that the Government have tabled to Clause 78 will be incorporated in the Bill, if the Committee is minded to pass them, and we can see how complex this is.

Lord Campbell of Alloway: I am much obliged to the Minister for giving way. He was to make efforts to produce a specimen direction before Report. Does that ignore the fundamental objection, if I can put it this way, to the reasonable man? It seems totally to ignore the overall objection to the concept of a reasonable man being imported as a substitute for actual intent.

Baroness Howarth of Breckland: While the Minister is being interrupted, may I respond to something? I was so thrown by inappropriately accusing the noble Lord, Lord Thomas, of something I did not intend that I did not follow through the point that was picked up. The issue for many women is that they never get to court. There is a real question about the level of assessment carried out by the Crown Prosecution Service and the investigation. One of my colleagues previously talked about the follow-through of these cases from the incident to the investigation, followed by the weighing of the evidence. Contrary to what is sometimes said in this Chamber, these cases are not taken forward because the women, it is thought, would not be believed.

Lord Falconer of Thoroton: Very much so. Listening to the debate, the question is whether there should be an objective element. When we weigh up the pain caused to the victim against what the defendant has to do, the balance tends to favour the victim rather than the defendant. Can we ask a jury whether the prosecution has proved beyond a reasonable doubt that the way in which the defendant came to an honest belief was totally unreasonable? Precisely how that would be phrased must be discussed when we reach the next group of amendments. Is that a difficult question to pose? I honestly believe that it is not. Is it a difficult question for juries to understand? We would have thought that juries were perfectly capable of understanding that.

Lord Phillips of Sudbury: The Minister falls prey to a common error in constantly referring to victims. The whole point of a trial for rape is to determine whether somebody is a victim. He has used that word a dozen times in the last dozen minutes. That is a measure of just how unsatisfactory the Government's position is.

Lord Falconer of Thoroton: No, because I was starting these arguments not from the perspective of the lawyer, with the greatest of respect, but from where there is a rape. What brings justice to a case where there is a victim? We must look at it from the point of view of the defendant, who might be wrongly accused, and from that of the victim who has been raped only to find that there has been an acquittal. In constructing the law, one must from time to time look at the wider perspective than simply the problem in relation to the individual defendant.

Lord Phillips of Sudbury: With the greatest respect, that is an untenable proposition. One is perfectly at liberty to look at the wider perspective, of course, and for this debate to be determined by lawyers' talk is inadequate. None the less, for the Minister to say that a complaint brought by an indignant woman enables or entitles him to refer to her as a victim before there has been a trial and an outcome is quite wrong.

Lord Falconer of Thoroton: Again, with the greatest respect to the noble Lord, I do not think he understands my point. Rapes occur. We need the criminal law, in part, to deal with them. What is a fair way of ensuring that the court does justice to the defendant as well as the victim? A balance has to be struck. If the law is constructed in such a way, as the noble Baroness, Lady Howarth, says, that the CPS, quite legitimately under the current law, is unwilling to allow a case to go before a jury, or if, when it does, there are unreasonable barriers to the truth coming out, there is something wrong with the law, not because it leads to unfair convictions of defendants but because victims—real victims, by which I mean people who have been raped—find that, as the Law Commission said, bogus defences can succeed. I believe that we should look at the way the law works and consider what can improve that without leading to an undue risk of defendants being wrongfully convicted. The approach we are adopting has been followed by other jurisdictions; we believe it is fairer, without prejudicing the possibility of a defendant suffering a wrongful conviction.

Lord Carlile of Berriew: I apologise for intervening again, and shall try to restrain myself from doing so on a further occasion. The Minister really cannot get away with constantly using the phrase "introducing an objective element" as though an objective element were not already there. We have had an objective element since the Sexual Offences (Amendment) Act 2000. The Minister should be justifying the complete removal of a subjective element. I invite him to address the serious point that I attempted to make about people suffering from mental illness and mental disability who are likely to be the very small number of people to find themselves convicted of an extremely serious offence as a result of these proposals.

Lord Falconer of Thoroton: On the existence of an objective element, the jury can have regard to, and should be directed to have regard to, the reasonableness or otherwise of the explanation offered as to why the defendant believed that the victim consented. But even if that belief is totally unreasonable, the jury are entitled to say that because it was honest—and that is the only question on belief in consent—not only can they acquit, they must acquit. A totally unreasonable belief, if honestly held, currently leads to an acquittal. That is the current law.

Lord Thomas of Gresford: Does the Minister not weigh in the balance and take into account the collective experience of the people who have spoken in this debate, all of whom say that they do not know of a case in which this unreasonable but honest belief defence has succeeded?

Lord Falconer of Thoroton: Of course I take into account the unbelievable wealth of experience in this House, but there are two views among lawyers as well—lawyers who are just as experienced as Members of this House with their collective wisdom in relation to the trial of serious sexual cases.

The Earl of Onslow: Can the Minister help a blank mind? Do he or his department know of any cases in which this defence has succeeded? All the other people here say such cases do not exist. If he has evidence that he is curing an illness that exists, can we have it?

Lord Falconer of Thoroton: The difficulty we all have, as noble Lords will be the first to acknowledge, is that we are speculating. Everybody is in the same position. Quite rightly, we are not allowed to ask juries why they acquitted somebody. It is not thought to be in the interests of the administration of justice, and I do not disagree with that. Everyone in the Chamber is speculating why juries acquit. I agree with the noble Lord, Lord Thomas of Gresford, that the views of people with great experience, such as him, must be taken extremely seriously.

Baroness Noakes: I thank the noble and learned Lord for giving way. I say with the greatest respect that he, too, is speculating. One of the questions I put to him concerned what his department estimated to be the impact of the change in the law on conviction rates in particular or, to put that more accurately, whether or not it would result in more convictions of people who should be convicted of rape and not wrongful convictions. I have not heard an answer to that. I heard the noble and learned Lord say that he expected conviction rates to go up but he could not say by how much. It seems to me that we need carefully reasoned analysis of what existing cases would result in a different outcome if this change in the law were implemented. If we cannot establish that, we have to consider whether or not it is safe to proceed with a change in the law.

Baroness Mallalieu: I interrupt further on the same point to enable the noble and learned Lord to deal with my point as well. I wonder whether the noble and learned Lord can help us. He says that we are speculating—as, indeed, we all accept that we are—about the reasons why a jury comes to a verdict of this kind. But, as I understand what Members of the Committee have said and certainly in my experience, I have never heard advanced the defence that we are discussing. If the jury were to come to such a view based upon it, it would be fanciful. I have never heard advanced a defence on the mistaken belief that we are discussing. I am not aware of any others who have heard that.

Lord Falconer of Thoroton: It was advanced in the case of Morgan. If one speaks to lawyers, one understands that it is a combination of two elements. Normally the defence would be, "I believe that she consented. She did consent".

Lord Thomas of Gresford: Morgan was convicted.

Lord Falconer of Thoroton: Indeed he was. As I say, the defence would comprise the two elements, "The victim consented. I believe that she consented". That is how the defence would normally be presented. I am gratified to see that the noble Lord, Lord Carlile, nods to indicate that that is how the defence is normally presented. Such a defence normally has two limbs.
	I put our case for a change in the law on the basis that it will increase the number of rightful convictions. I am not in a position to indicate what the percentage or the number would be, nor I suspect would anyone be in that position. Further, I put our case on the basis that it is a more just approach to the question of sexual violence, rape, penetration and so on, against women. That is how I put my case. I have the support not just of those involved in—

Lord Crickhowell: As a non-lawyer I hesitate to ask a question at this stage but I have listened to all of the debate except the first few minutes. I thought that the noble and learned Lord was going to move on to the second part of an argument, but I do not think that he is. That is why I ask this question. Again and again and again he advanced a case for having an objective test. But having listened to the debate today I formed the conviction, on the basis of the wealth of evidence that is being produced by experts, that the particular definitions in the Bill will be totally unworkable. Is the noble and learned Lord now going on to a second part of his defence, which is, "The Bill, as I have drafted it, stands and I defend it", or is he saying only that there must be an objective test? The noble and learned Lord seems to have produced an objective test that is almost universally condemned.

Lord Falconer of Thoroton: If the noble Lord had heard the beginning of the debate, he would be aware that we decided to debate the principle of the matter. Given that various amendments seek to change the test in various ways, we can, in debating those amendments determine whether or not the way in which the Government devised the test is the best way to devise it for those who support an objective test.
	I turn to the important point raised by the noble Lord, Lord Carlile. He describes cases which I accept could occur. However one constructs the test, the test must be capable of dealing with the kind of situation which the noble Lord identifies; namely, looking at all the circumstances which might well, particularly in the kind of circumstances to which the noble Lord referred, include the attributes of a particular defendant. In looking at the circumstances a reasonable person must have regard to some of the attributes of the defendant. As I understood it, the noble Lord described someone suffering from severe mental impairment. That would be a factor which the jury could take into account. It would not always constitute a defence, but so long as the jury is able to ask itself, "How would a reasonable man think that particular person in those circumstances should have behaved?" the objective element is brought in.

Lord Carlile of Berriew: I said that I would not intervene again but I do so for the express purpose of expressing my gratitude to the Minister for the very important concession that he has just made. Can we take it, therefore, that the Government will in due course, of their own motion, introduce amendments which will make it clear that what the Minister has just said is in reality the law?

Lord Falconer of Thoroton: We do not think that it is necessary to do that. The next amendment concerns whether a defendant acted reasonably or acted as a reasonable man thinks a person should act. No doubt some lawyers would say that the majority decision in Morgan was right whereas other lawyers would say that the minority decision was right. We believe that the right approach is to introduce the objective element, to focus the jury on what circumstances confronted the defendant and for the jury to ask itself whether what the defendant did was reasonable in all the circumstances.

Lord Thomas of Gresford: Would that include the defendant's personal characteristics—who he is?

Lord Falconer of Thoroton: All the circumstances could be taken into account. It is for the judge and the jury together to work out the extent to which they should take into account the particular attributes of the defendant. I do not think that is difficult. I do not think that juries will have any difficulty with that. I believe that the test is correct in terms of the law, although no doubt we shall now have an interesting debate on that. I believe that it is possible to ask the jury the question, "Did the defendant act reasonably in all the circumstances"? For those reasons we believe that an objective element is sensible, just and will lead to a greater number of convictions. Therefore, I invite the noble Lord to withdraw the amendment.

Lord Lloyd of Berwick: At an earlier stage of his reply the noble and learned Lord referred to the Heilbron report which confirmed the law as stated in Morgan. The noble and learned Lord then said rather dismissively that that was a long time ago and things might have changed. But how does he deal with the fact that the Law Commission, which reported only in February 2000, came down against Clause 1(3)? How does the noble and learned Lord deal with the question that the Government's own review came down against Clause 1(3)? I gave the references in the course of my speech but I should be very happy to give them again. The noble and learned Lord has nothing to support his argument.

Lord Falconer of Thoroton: We are grateful for the work that the Law Commission has done but the issue we are discussing goes beyond simply a question of law reform. There is an issue here that a wider community than simply the lawyers must decide.
	The members of the review were divided as to whether or not an objective test should be introduced. Some said that it should; some said that it should not. Some were attracted to the Canadian model which includes an objective element.

Lord Lloyd of Berwick: I read again the relevant sentence:
	"Accordingly we recommend that the defence of honest belief should be expressed in terms of free agreement and be subject to limitations as to its use. This does not impose an external and objective requirement of reasonableness on the defendant".

Lord Falconer of Thoroton: I quote from the consultation paper:
	"The Steering Group was very attracted to the Canadian solution to this very difficult problem. In Canada the law retains an honest but mistaken belief defence but fetters when it can be used in a way that ties in with the definition of consent. The intention was to introduce an 'air of reality' . . . The Canadian Criminal Code states . . .
	the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting".
	So the steering group recommends the Canadian model, which is similar to the model that we have adopted.

Lord Ackner: Does the noble and learned Lord accept that his proposal can result in a person being found guilty of rape by reason of his mistake?

Lord Falconer of Thoroton: It allows a person to be guilty of rape where he believes that there was consent when there was not, and that belief is unreasonable, just as the current law permits someone to be acquitted of rape where he mistakenly believes in consent, no matter how unreasonably.

Earl Russell: I wonder whether the Minister has finally sat down. I listened to him with great care, and I believe that he has done more damage to his own case than all the rest of us put together.
	I was fascinated by the statistics that he quoted. He said that 45 per cent of rape cases that came to court resulted in conviction but only 7 per cent of reported rapes resulted in conviction. Surely, we need not to increase the 45 per cent by changing the law, but to address the 7 per cent. We need to address the extreme difficulty of getting women to bring rape cases to court.
	I have some personal knowledge of this matter. In the course of an academic career, three pupils reported to me the experience of being raped. In only one of those three cases did I persuade the person to go to court. An uncomfortable feeling lingers in the back of my mind that the one I persuaded to go to court was the one to whom I did most harm. The effect of the rape on those three people was very different. It had nothing to do with the severity of the offence and everything to do with their own character. One of them reminded me of nothing so much as a hen shaking her feathers to straighten them after a cock had been at her. One of them has not recovered in 10 years. The one in the middle went to court, and I believe that she had cause to regret it.
	In these cases, it is usually the detail of the cross-examination that causes the problem. A senior journalist, who was formerly a struggling barrister, told me a story about a time when he was one of a group of people defending in a gang-rape case. He said that he did what he thought was necessary for the case, going through his cross-examination in excruciating and practical detail. The next person, who defended the next one of the gang accused, is now an extremely prominent lawyer-politician. He began his cross-examination with the words, "I am sorry that you have had to go through such an extremely uncomfortable experience, but I am sure you will understand that justice must be done. Before we begin, look carefully at the accused. Are you certain that he is one of those who attacked you?" She looked carefully at him and said, "No".
	Here we have the root of the mischief. The actual process of the trial is for many women too unpleasant to go through. It is almost as bad, and in some cases quite as bad, as being raped again. It is difficult to see what needs to be done about that, but we should address that question and not simply change the law.
	When we debated the Youth Justice and Criminal Evidence Bill, we were on the right lines. The directions in that Act could be interpreted in a slightly more restrictive way than they are at present. I used to be against the introduction of any previous sexual history, but I was persuaded that I was mistaken by the noble Baroness, Lady Kennedy of The Shaws, who described a case in which it was impossible to establish what happened without invoking previous history.
	We need to consider the pre-trial stage and the nature of the cross-examination. We need to make the process of reporting and trying rape a great deal less unpleasant for the putative victim. My noble friend Lord Phillips will note that I use the word "putative". If the process of the trial is as unpleasant as the offence itself, we will not get many convictions.
	Reforming the law and increasing the proportion of convictions among those who actually get to court is not an answer. It is likely to lead to increasing convictions, but only because the wrong people will be convicted. Those who terrify their victim so much that their victim will not come forward are likely to be the worst offenders, who under these proposals will continue to get off. The bumblers who get to court may be more likely to be convicted, when they may not actually be guilty. We have not got the answer here in the Bill; we are attacking the wrong problem.

Lord Falconer of Thoroton: As ever, the noble Earl, Lord Russell, puts his point forcefully. However, it is not a question of either/or. We need to assist the victims when they come forward by giving them support, making them more convinced that the courtroom process will not be a terrifying revictimisation. That is partly a question of changing the law so that it better reflects a reasonable approach to their experience, but we also need to ensure that what happens to them in court is not terrifying.
	We have introduced measures that are being rolled out now, which make it much easier for vulnerable or intimidated witnesses to give evidence in court. For example, they may give evidence behind screens, if that makes it easier for them, or even on video, away from the courtroom itself.
	With the greatest respect to the noble Earl, Lord Russell, he is wrong to say that this is a one-approach issue. A whole range of approaches must be taken to make things easier. One of them is to make a substantive law that better reflects human experience.
	I must correct myself on the precise figures for rape in 2001. The recorded number was 9,008, of which the percentage found guilty was 5.8 per cent. The number of people appearing on trial for rape was 1,267, of which the percentage found guilty was 41.2 per cent. I apologise for giving the figure wrongly before.

Lord Thomas of Gresford: For the benefit of the Committee, will the noble and learned Lord tell us the general percentage of conviction, as opposed to acquittals in other offences?

Lord Falconer of Thoroton: I shall need to check this answer, because I want to be sure that I am right, but I believe that for trial by jury the percentage of conviction is 73.4 per cent.

Lord Campbell of Alloway: I thank all noble Lords who have spoken. I should remind the House that we are supposed to be debating Amendment No. 2, although we had a general tour d'horizon. So much the better, but I thought I should remind the Committee of what we should be doing.
	Amendment No. 3 would leave out subsection (3), and it is consequential on Amendment No. 2. I have undertaken not to take the opinion of the Committee on Amendment No. 2 today. I hope that that is acceptable to the noble and learned Lord, Lord Lloyd of Berwick, who was good enough to support me. The issue is entirely separate from the one regarding subsection (4), which refers to Clause 78. Amendments Nos. 4 and 5 are jammed between Amendments Nos. 3 and 6, the merits of which have been canvassed only partially so far. I have not spoken on Amendments Nos. 4 and 5, but I shall do so when they are moved.
	I should also remind the Committee, after all these hours of debate, that I gave the undertaking for another reason, which is related to Amendment No. 8. That was considered by some Members of the Committee, especially by the noble Lord, Lord Alexander of Weedon, as something that should be considered before a final decision was undertaken on Amendments Nos. 2 and 3, which seek to leave out subsection (3).
	With respect, I should just say this. We have all, on all sides of the Committee, been speculating. The noble and learned Lord, Lord Ackner, thought that the low conviction rate was something to do with fees and something to do with all sorts of things. The prime reason why there is a low conviction rate is that there is an overall burden of proof on the Crown. The jury has to be sure before it convicts. That is the main reason, and that is what Clause 1(3) will do away with. It will substitute a concept of "a reasonable man" with a burden of proof on the defence and some compulsory presumptions as to non-consent.
	I say this with respect to the noble and learned Lord. When he was engaged earlier in discussion with a certain noble Lord, he did not seem to appreciate that he has to approach the whole problem with a presumption of innocence in favour of the man. No one is a victim. We have the Crown on one side and the accused on the other, and there is not a victim until there is a conviction. Thereafter, as I tried to point out, the victim is very often the accused who, in many cases, has been erroneously convicted.

The Earl of Onslow: I seek clarification on one point. Is my noble friend suggesting that we have three choices: to take out the defence of unreasonable belief; to leave it as it is; or to accept Amendment No. 8? Presumably we have to have Amendment No. 8, which could be right; or have Clause 78, which may be wrong; or leave the law as it is? Is that correct? I think that I may have got myself into a muddle.

Lord Campbell of Alloway: Yes, I think that that is more or less right. Ultimately, we will either have Clause 1, but without subsections (3) and (4), or we will agree to the Motion of the noble and learned Lord, Lord Ackner, to knock it all out—that Clause 1 should not stand part—just like that. Thirdly, Amendment No. 8, tabled by the noble Lord, Lord Thomas of Gresford, could commend itself to the Committee. That is about where we will get at the end of the day—although heaven knows when we are going to get there. I hope that that is right. In these circumstances, I beg leave to withdraw the amendment, to which we shall return on Report.

Amendment, by leave, withdrawn.

Lord Burnham: I have to tell the Committee that if Amendment No. 3 is agreed to, I cannot call Amendments Nos. 4 and 5 on grounds of pre-emption.

Lord Campbell of Alloway: had given notice of his intention to move Amendment No. 3:
	Page 1, line 13, leave out subsection (3).

Lord Campbell of Alloway: I am advised by those at the Table that I would not be asked about Amendment No. 3 because, as I informed the Committee, it is consequential. I have, by leave, withdrawn Amendment No. 2. I shall therefore not move Amendment No. 3.

[Amendment No. 3 not moved.]

Baroness Noakes: moved Amendment No. 4:
	Page 1, line 14, after "person" insert "sharing the characteristics of A"

Baroness Noakes: In moving Amendment No. 4, I shall also speak to the other, very similar amendments in this group. Earlier, my noble friend Lord Lucas mentioned the role of professionals. I certainly do not denigrate the role of professionals. I think that the role of professional lawyers in the previous debate, long though it was, has demonstrated the value that professionals can bring to the Committee. I believe that we will need that professional wisdom in considering this group of amendments. We will certainly require a knowledge greater than I possess.
	Amendments Nos. 4 and 5 insert the words,
	"sharing the characteristics of A",
	into paragraphs (a) and (b) of Clause 1(3), which itself creates the objective test of reasonableness for a defendant's belief in consent. We are looking for whether a reasonable person sharing the defendant's characteristics would doubt whether consent had been given and then act to resolve such doubt. That is still an objective test, which I hope is not a return to the position following Morgan.
	The Committee has already debated at length the objective test itself. Amendment No. 4 does not challenge that basic approach pro tem, but would temper it by requiring the jury to consider what a reasonable person showing the characteristics of the defendant would have thought or done.
	This amendment was suggested by the Criminal Bar Association, which, as the Committee will be aware, accepted the basic approach to reasonableness in Clause 1(3). The intention behind the amendment is that if the defendant had, say, learning difficulties—the example given by the noble Lord, Lord Carlile, who I see is not in his place—the objective test applied to him would relate to someone with those types of learning difficulties. I do not think that it would be fair to apply the understanding and reasoning ability of, say, a person of average IQ to someone with severe learning difficulties. Similarly, the defendant may be quite young, perhaps a child as young as 10. In such cases we need to build a test around the characteristics of a child of that sort of age and not around an adult ability to understand the issues.
	I accept that there may well be difficulties with the wording. I hope that the term "characteristics" cannot be interpreted too widely. I do not believe, for example, that it is a person's characteristic to be a drug addict—thus excusing narcotics-induced behaviour. I am open to suggestions on better drafting to achieve the modification of the objective test in the way in which I have outlined.
	The amendment is put forward as a genuine attempt to ensure that the objective test of reasonableness, which the Government are introducing to remedy a lack of perceived fairness to putative victims, operates fairly for defendants. I hope that the Minister will either accept the amendment or say how the clause will operate to deal with the situation that I have described. I beg to move.

Lord Campbell of Alloway: I oppose this amendment, as I think is apparent to the Committee from what I have already said on a previous amendment. If the defence of honest and mistaken belief is abolished, so be it. However, the Crown no longer has the overall burden of proof, and the defence is hobbled by conclusive presumptions and by the burden of proof of establishing conduct related to the abstract concept of the conduct of a reasonable person. That has already been considered, and the objections to it are manifest—they have been made from all sides of the Committee, including from these Benches. The amendment piles Pelion on Ossa as regards obscurity and unfairness.
	There is now no need to prove actual intent. The noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, raised a fundamental objection to that on Second Reading. I referred to the sensitive approach of my noble friend Lord Astor of Hever. His speech in effect torpedoed the concept of a reasonable person—I shall come to characteristics in a moment—as a substitute for actual intent.
	The noble Lord, Lord Carlile of Berriew, carried that to its ultimate conclusion to show how positions such as autism, mental state and IQ have to be taken into account, not only for the complainant—heavens—but for the accused. Justice works both ways. If a defendant has to prove that his conduct squares with that of a reasonable man, and he is half-dotty and the jury think that he is totally honest and did not intend to commit the crime, they have to convict him. That is the last dregs of injustice.
	The situation is made even more difficult because there is a double whammy, like the double reasonableness in Clause 1(3). The first whammy to match is conduct, and the second is characteristics. Imagine the courtroom. Suppose one was trying to defend a pretty simple chap. In my young days in the West Country, quite a few people were certainly pretty dotty and now and then got into difficulties of the kind that we are discussing. They had the benefit of the presumption of innocence, and some got off and some did not. I cannot say whether that was right or wrong, because no one knows. The point was that machinery operated. The amendment to add characteristics, although intended to mitigate the unfairness of Clause 1(3) as related to the conduct of a reasonable person, does not do so. It imposes a further burden.
	Let us look at the practical situation. How on earth will the accused in a trial establish the burden of proof? He has to establish a requisite kinship between his characteristics and those of an abstract norm whom the jury might think of as a reasonable person. Would that reasonable person be likely to find himself in the dock in a rape trial? With respect, the whole idea is pretty incongruous. It cannot do justice. The Minister will have a fundamental objection to it and will not accept it.
	Suppose counsel for the defence gets hold of the Shorter Oxford English Dictionary to look up "characteristics" to see what he has to establish. He would have to establish a match of some distinct, distinguishing marks of character and quality of character between his client in the dock and the invisible reasonable man. How will he do that? The burden of proof is on him; the Crown does not have to prove anything.
	The defence counsel could call evidence. Are we to have the evidence of psychiatrists and psychologists to establish the double match in all rape trials? Heaven forfend. What would happen if my noble friend's amendment were accepted? Would the match be left to the jury, in the absence of evidence, so that they use their common sense to resolve the last-ditch defence for which the burden of proof is on the accused? Counsel could say, "It is matter for you, members of the jury; I can't lecture you on it. You'll have to do your best and afford a form of palm-tree justice". However, he would not tell them that the maximum sentence was life imprisonment.
	Quite seriously, how is counsel to advance a reasoned defence? It is all but impossible. There is no evidence. Imagine the simple man in the dock. Counsel has to prove that that man's characteristics match the abstract norm. That is nonsense, and would create a manifest injustice.

Lord Thomas of Gresford: I hope that I can illustrate the problem that the amendments are intended to address with the case of Luc Thiet Thuan, which was decided in the Privy Council some years ago. In that case, a young man in Hong Kong had suffered as a child an injury that caused him brain damage, lowering his ability to control himself under pressure. In an episode with a young lady, she made disparaging remarks about his person, whereupon he took a knife and killed her. At the trial in Hong Kong, there was medical evidence to the effect that he was brain damaged, with the results that I have conveyed to Members of the Committee.
	Accordingly, the argument in that case was that, when it came to the defence of provocation, Luc Thiet Thuan should be compared with a reasonable person of his age and sharing his characteristics, including the fact that he had brain damage. In other words, the reasonable person with whom he was to be compared was virtually the same man. I argued the case on behalf of the appellant. In the Privy Council, their Lordships divided by four to one against me, the one for me being the noble and learned Lord, Lord Steyn.
	When the same principle came before the Court of Appeal in England some time later, that court decided not to follow the majority decision from the Privy Council. Highly unusually, it decided to follow the judgment of the noble and learned Lord. Accordingly, that principle became embodied in the law. It went to the House of Lords, and their Lordships decided by three to two to follow his judgment. But each of the three majority decided to follow the judgment of the noble and learned Lord, Lord Steyn, on different grounds.
	That is the kind of problem that can arise in relation to the concept of a "reasonable person". It so happens that I lost for the appellant in that case in the Privy Council. When I subsequently came before the courts of appeal in England, I lost again when I appeared for the prosecution because the principle was used against me, with my argument succeeding in those courts.
	The purpose of inserting the words "sharing the characteristics of A" is to reduce the objectivity of the test proposed in Clause 1(3) so that the "reasonable person" becomes "A". The "reasonable person sharing the characteristics of A" becomes "A". He is of the same age and sex and, if one has brain damage, the other has brain damage. Therefore, the test ceases to be objective and becomes almost subjective.

Lord Campbell of Alloway: I am obliged to the noble Lord. I agree with him. I said what the object of it was. My speech was concerned with the effect of it—that is, that it did not achieve the object.

Lord Thomas of Gresford: I am much obliged to the noble Lord for his clarification. My point is not that I am in support of or against the amendment; it is simply that the amendment illustrates the complete unworkability—to use that word again—of the way that the Government are approaching this problem. There is a far simpler solution over the page in the Marshalled List of amendments, but we shall not reach that point for a considerable time because we must go through Clause 78 first. This amendment seeks to try to make sense of the issue and to make Clause 1(3) accord with the current law on provocation in this country. As I said, it illustrates all the problems.

Viscount Bledisloe: It seems to me that if we must have an objective test, then, in theory, the amendment would improve the Bill. I also believe that the noble and learned Lord has already conceded that the amendment must succeed by the answers that he gave to the points raised by the noble Lord, Lord Carlile, during the previous debate. In relation to the examples given by the noble Lord, Lord Carlile, he said that obviously one had to consider the characteristics of the individual and judge him by the standards of a person in his condition. That would get us into a rather odd situation, because one of the two people whom the noble Lord, Lord Carlile, postulated was someone who periodically had attacks of a mental illness which made him act wholly unreasonably. Therefore, we shall now have a "reasonable person" who has the characteristic of periodically acting wholly unreasonably. That is perhaps a little difficult for a jury, and perhaps even your Lordships, to understand.
	Although I believe that in theory the amendment would improve the situation, where on earth would it get us? Let us suppose that the defendant says, "Well, my characteristic is that I have only recently arrived in this country. I used to live in a country far away where, whenever ladies said 'no', they meant 'yes'. Therefore, that is my background and my characteristic". Will that be a defence, and how will it be dealt with? Will people be called from that country to prove that that is the habit of that country, and will the prosecution be rebutted?
	Once one gets down to individual characteristics, the trials will go on indefinitely. Is that really what the Government want and, although the logic would be improved, does it not demonstrate the fallacy of the whole approach? However, if we must have the whole approach, then I would prefer to have it with the amendment rather than without it.

Lord Lucas: I do not know what the noble and learned Lord, Lord Falconer, studied for his English O-level texts, but I read To Kill a Mockingbird. If one applied the Bill as it stands to the rape trial in To Kill a Mockingbird, then the man would be convicted because clearly no reasonable man—that is, a white man—would ever believe that a white woman would consent to sex with a black man. If we made the amendment that my noble friend suggests, then the defendant would be let off, as indeed he should be, because we would make the test relevant to him.
	That is perhaps taking things to extremes but I believe that, to some extent, it illustrates the difficulties that I have with the Government's current drafting, in that one is trying to insert the character of the reasonable man, having assigned characteristics to him in respect of the relationship between the individuals in the case. One will be in great difficulties in deciding what those characteristics should be. I do not share my noble friend's view that they should necessarily be the characteristics of the defendant.
	I believe that point has been dealt with extremely well by others who have spoken. But I believe that it all adds up to a considerable argument in favour of the phraseology employed by the noble Lord, Lord Thomas of Gresford, in Amendment No. 8, to which I very much look forward.

Lord Northbourne: I should declare an interest in the "reasonable man" in the context of Clause 80. As we shall probably not reach that point until after Easter, I thought that I should signal my concern. I am very unhappy indeed about the concept of a "reasonable man" in the context of Clause 80. While I suspect that many noble Lords are right to say that this amendment is not ideal, if we must have the concept of a "reasonable man", it would be slightly better with this amendment than without it.

Lord Skelmersdale: I can understand the temptation to seize on the phrase "a reasonable person" in Clause 1(3)(a) and to seek to define such reasonableness in respect of that person. But I looked a little further along the line and discovered that we should be talking about "a reasonable person" in all the circumstances. That may or not be the Minister's response to this debate. But I believe that in the To Kill a Mockingbird case, or the case of a defendant who has learning difficulties or is a drug addict or whatever, those circumstances would have to be taken into account. I hope that that is what the noble and learned Lord will say.

Lord Falconer of Thoroton: Broadly, it is. Obviously when one is dealing with the standard of the reasonable person or, to use the suggestion of the noble Lord, Lord Thomas of Gresford, a person without a reasonably held belief—one must ask whether there is a difference between a reasonable person on the one hand and a reasonably held belief on the other—some standard must be set and plainly it must be set by the circumstances of the factual situation that the jury is addressing. We believe that it is possible to frame a legal test where the jury can be asked, "Do you think that the prosecution has proved that the defendant's belief was reasonably held?" That is broadly the position that we want to arrive at.
	In some cases, the characteristics of the defendant will be relevant; for example, his or her age, or the kind of example given by the noble Lord, Lord Carlile, where a person is suffering from an identifiable mental impairment. But we do not need to go so far as to say that the jury must take into account all the characteristics of the defendant when considering what the reasonable person would have done in the situation.
	In the case of Smith (Morgan), the noble and learned Lord, Lord Hoffmann, dealt with this very issue in relation to provocation. He was critical of the approach of directing the jury to attribute certain characteristics to the reasonable man. He said that approach had,
	"produced monsters like the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue sniffer".
	The noble and learned Lord, Lord Hoffmann, is of the view, and I share that view, that the judges and the jury are capable of identifying which characteristics are relevant and which are not. He said that judges should describe the objective element in the provocation defence in simple language. That is the approach that we would adopt.
	I think that juries are perfectly capable of evaluating the evidence presented to them and of deciding the extent to which the personal characteristics of the defendant should contribute to their assessment of whether he acted reasonably once doubt about the consent of the other party had arisen.
	We can debate for hours precisely how that is put in legal language. We think we have done it. We do not for one moment dissent from the approach taken by the noble Baroness in this respect. I do not believe she is suggesting that every single characteristic necessarily would be taken into account, even the fact that the defendant is unreasonable as suggested by the noble Viscount, Lord Bledisloe. What I think the noble Baroness is trying to get at is the fact that where appropriate one must have regard to the circumstances including, for example, age or mental dysfunction on the part of a defendant. We would agree with that. We believe that we have got there without getting to the absurd point identified by the noble Viscount, Lord Bledisloe.

Baroness Blatch: Very often in a case it is the word of the person making the accusation against the word of the defendant. It is not always the case that it has been established that a rape took place or, indeed, that even sexual intercourse took place. The accused makes the accusation and the defendant is defending a negative because he continues to say, "I did not do it".
	Clause 1(3) introduces a test against whatever argument is put up by the defendant and asks, "Do you believe what that person says? Would what is said by that person about what they believe happened or did not happen on that particular occasion be said by a reasonable person? Is it believable?" It seems to me to be very suspect if, on the grounds that the person is not convincing or even if it is perceived that that person is not telling the truth, irrespective of that person's condition—whether that person is mentally impaired, just a waster or is reasonable—the test is put and on the basis of whether it is believed that someone is telling the truth rape is established.
	Like the noble Viscount, Lord Bledisloe, if the concept of a reasonable man test has to be made, I would rather have a definition of the way in which that person is being judged. However, like many others who think that subsection (3) is unworkable, I believe there is the difficulty of pressing a test of a reasonable man with either no definition—in other words the reasonable man is in the eye of the beholder, the members of the jury—or with the amendment tabled by my noble friend, which at least defines that the person is being judged in the shoes that he wears.
	We are speaking of a case in which no one knows whether rape has been committed or even whether sexual intercourse has taken place, and in which everyone is making judgments in a vacuum. It seems to me that Clause 1(3) throws up so many problems that I cannot see how it could work in practice. However, if it has to work at all, some definition of what is a reasonable person, in other words how that person would be judged, needs to bear at least some characteristics of the person concerned.

Lord Falconer of Thoroton: As regards the first point raised by the noble Baroness, Lady Blatch, she is right. The question only arises once the jury is satisfied, first, that the act of sexual intercourse has taken place and, secondly, that it was without consent. It arises only when the issue is belief in consent even though there was not consent. She is right to say that those are stages which must first be gone through.
	As far as concerns the question of whether one wants to try to define in detail the reasonable person and what would be his or her approach to the facts, I do not think that would be right. What one is saying, as in many other areas of the law, is that the jury must decide what was reasonable. The jury has to decide, for example, in relation to provocation, how a reasonable person would have acted. The jury has to decide whether or not the amount of defence used by the defendant was reasonable self-defence. The more one complicates it, the more one adds accretion to accretion, the harder one makes it for the jury to decide and the more one gets away from the basic question, "Was it reasonable?" I believe that the approach we have adopted gets to the point.
	We shall listen carefully to what is said. However, I do not believe that even the most experienced lawyers in this House believe that one cannot ask a jury to evaluate the question of the reasonableness of the behaviour of a particular defendant.

Viscount Bledisloe: What was said by the Minister in his speech was reasonable. However, the trouble is that it conflicts with the words in the Bill. The words in the Bill require you to take the abstract objective, reasonable person and decide what he would have done in the circumstances. "Circumstances" means surrounding facts; that is, the party they had been to; what the lady was wearing; what the lady had said, and so forth. The circumstances are not the peculiar characteristics of the individual: his extreme youth, his sexual inexperience, his mental health, and so forth.
	If the Minister was serious in his reply to the noble Lord, Lord Carlile, that the mental health of the individual would be taken into account as being a characteristic, there must be some such words as proposed by the amendment and then it is not the circumstances at all; it is a reasonable person of the type of the particular accused.

Lord Falconer of Thoroton: I yield to no one in the experience of the noble Viscount in relation to criminal law. I know that his experience is vast in that respect. I have set out what we seek to achieve in relation to the Bill. If we have not managed that as a matter of law, we shall consider what was said by the noble Viscount in relation to that.
	However, I have made clear the approach that we are adopting and why we think Clause 1(3) gets there. If we are wrong in relation to that we shall consider it and come back on Report.

Lord Campbell of Alloway: I totally agree with the reservations of my noble friend Lady Blatch. My noble friend seeks some form of definition on the perfectly logical and reasonable basis that without it no jury will understand what it has to deal with. I believe the reply was, "We are working on a form of words". Perhaps that is not right.

Lord Falconer of Thoroton: I thank the noble Lord for giving way. We believe that one can pose to the jury the question of how a reasonable man would have behaved in all the circumstances and the jury would understand the question.

Lord Campbell of Alloway: I am grateful to the noble and learned Lord. It comes to this: it is not workable as it stands. What will be done to try to make it more workable if we are to abolish actual intention? How will that be done?

Lord Thomas of Gresford: If the noble and learned Lord were to consider the standard direction to a jury in provocation where the reasonable person comes to the fore, he would find that if the jury is satisfied that the ingredients of murder have been made out, it may consider whether murder should be reduced to manslaughter by reason of provocation either by word or deed, which, first, makes the defendant no longer the master of his own mind and secondly would make a reasonable person sharing the same characteristics of the defendant of age, sex and background act in the way that the defendant had acted. The word "characteristic" may be statutory, I cannot remember, but is certainly in the direction to the jury. Those are familiar words which are certainly not "in all the circumstances". If characteristics are to be conveyed in the statute I respectfully suggest that the word that is commonly used should be employed.

Lord Lucas: In one of his replies the noble and learned Lord talked about a "reasonably held belief". That is an excellent phrase and I wish the noble and learned Lord would put it in his Bill. I find it easy to understand and it adapts to all the circumstances.
	I find this situation difficult to understand: suppose one has a couple in a long-term sado-masochistic relationship, who do all kinds of strange and wonderful things to each other. After one particular session the woman cries rape. What function has a "reasonable man" to perform in order to have any view on that relationship? One cannot impose a "reasonable man" on that relationship and expect him to start having views. The whole thing is bizarre and strange. None the less, it is a circumstance in which rape could have taken place.
	One must establish the reasonableness of the belief of the man in dealing with consent. But this "reasonable man" creature does not belong there. I wish the noble and learned Lord would return to the ordinary English he uses when describing the Bill's function and put it in the statute rather than using the words we have in front of us.

Lord Falconer of Thoroton: I take up the points of the noble Lords, Lord Thomas and Lord Lucas. I am tempted to ask, although I shall not, where, in the sado-masochistic relationship described by the noble Lord, does "reasonably held belief" fit. It raises all the same legal problems.
	The words, "the characteristics of the defendant" are not in the provocation statute. The courts have developed an approach. That is, keep it simple, leave it to the jury, and do not think about the reasonable obsessive, the reasonable sado-masochist or the reasonable glue-sniffer. Just put the issue straight to the jury. That is what we have done in this provision.
	We could talk about the issue for a long time. The question is whether we have reached a point where the judge is able to ask the jury whether the person acted reasonably in all the circumstances. We think it is a simple question and one a jury can understand.

Baroness Noakes: I thank all noble Lords who have taken part in the debate and in particular for contributing to my increasing legal knowledge. I now have a greater knowledge of the defence of provocation, which may well prove useful one day.
	The Minister says that it is a simple question, which is put to the jury for it to decide. I understand the simplicity of that approach. However, I have raised my concerns. I tabled these amendments because I was uncertain that juries will in practice be able to handle Clause 1(3) as drafted without an amendment to deal with the particular characteristics of the defendant before them. I shall of course read carefully what the noble and learned Lord said and reflect further on the matter. But I am troubled that it may not be clear beyond peradventure that the present formulation will mean that instances such as learning disability or extreme youth would automatically result in those characteristics of the defendant being taken into account.
	Beyond that, we are underlining a wider concern about how the Government's redraft of the sexual offences legislation will work in practice. I know that we shall return to that matter in due course. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 5 not moved.]

Lord Campbell of Alloway: moved Amendment No. 6:
	Page 1, line 18, leave out subsection (4).

Lord Campbell of Alloway: I explained to the Committee that I would move Amendment No. 6 separately. It is not a consequential amendment. I moved Amendment No. 2 and Amendment No. 3 was consequential on it. This was my instruction from the Table. Then I was informed that the chair would call Amendment No. 6. All I am doing is moving it and taking as little time as possible in doing so. I have spoken to Amendment No. 6 already regarding the complexity and unworkability of Section 78. Other Members of the Committee may wish to speak to the amendment as of course it is supported by various other noble Lords. I beg to move.

Lord Lloyd of Berwick: I thought that Section 78 would be the subject of a separate debate at some stage. It raises all kinds of further difficulties and complexities which are not raised purely by Clause 1(3). However, I was leaving the debate to other Members and in particular to the noble Baroness, Lady Noakes.

Baroness Noakes: Perhaps I may help the noble and learned Lord. I understand that we shall be debating the substance of the Section 78 presumptions and all that sails therein in the next group of amendments, which I believe we shall be taking after the dinner interval.

Lord Lloyd of Berwick: I fully understand that.

Lord Campbell of Alloway: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House be resumed. In moving the Motion, I suggest that the Committee stage begin not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Special Immigration Appeals Commission (Procedure) Rules 2003

Lord Filkin: rose to move, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].

Lord Filkin: My Lords, I am grateful for this opportunity to explain the Special Immigration Appeals Commission (Procedure) Rules 2003, which were laid before the House on 18th March 2003. The rules were withdrawn on 24th March and a revised draft incorporating some minor amendments were relaid. That was as a result of scrutiny of the draft by a legal adviser to the Joint Committee on Statutory Instruments, which brought to light a small number of errors. The relaid draft corrects those errors and incorporates some drafting improvements recommended by the JCSI legal adviser. The rules have already been debated and approved in another place on the 26th March 2003. I beg to move that they be approved.
	Although there is no statutory requirement to consult on these rules, which are outside the supervision of the Council on Tribunals, a limited consultation has been undertaken. A wide cross-section of interested parties have been consulted, including human rights groups, lawyers and the judiciary.
	It may be helpful if I set out briefly the background. The Special Immigration Appeals Commission (SIAC) was created by the Special Immigration Appeals Commission Act 1997 to hear immigration and asylum appeals. An appeal lies to the commission if it cannot be heard by an immigration adjudicator because the Secretary of State has certified that the decision being appealed was taken on national security or other public interest grounds.
	The commission's jurisdiction was extended following the September 11th atrocity and the commencement of the Anti-terrorism, Crime and Security Act 2001, which extended the counter-terrorism measures that were already in place in the United Kingdom. Section 21 of that Act enables the Home Secretary to certify a person as a suspected international terrorist, if he reasonably believes that the person's presence in the United Kingdom is a threat to national security and suspects that the person is a terrorist. That allows the individual to be detained, even when there is no imminent prospect of him being removed or departing from the United Kingdom. Section 25 provides a right of appeal to the commission against certification. If a certificate is upheld, Section 26 requires the commission to conduct a review six months after the appeal has been determined, or if no appeal was made, six months after the certificate was issued. Reviews must then be conducted every three months thereafter.
	The commission's jurisdiction was further extended by the Nationality, Immigration and Asylum Act 2002 to include appeals against a decision of the Secretary of State to make an order depriving a person of British citizenship status.
	Therefore, the new rules are being introduced to serve four key functions. First, they set out the specific procedures to be followed for appeals against certification and reviews of certification under the Anti-terrorism, Crime and Security Act 2001. Secondly, they apply the procedures for appeals before the Special Immigration Appeals Commission to appeals against decisions on deprivation of citizenship. Thirdly, they bring the rules more closely in line with procedures for appeals before the Immigration Appeals Appellate Authority. Finally, they streamline and clarify the procedures to be followed.
	Perhaps I may now say a few words in more detail about the rules. They replace the existing Special Immigration Appeals Commission (Procedure) Rules 1998, which are revoked by Rule 55. That will make them easier to understand than if the 1998 rules had been amended.
	The new rules set out the commission's general duty to secure that information is not disclosed contrary to the public interest. They provide for service of the notice of appeal on the commission rather than on the Secretary of State—which has been welcomed by many consultees—in Rule 7. The time limits for appealing against an immigration or asylum decision are now, under Rule 8, five working days for people detained; 10 working days for people not detained—that is the main change—and 28 days for people abroad.
	Those time limits are to correspond with new time limits for appeals to an immigration adjudicator in rules made under the Nationality, Immigration and Asylum Act 2002. In special circumstances, the commission may extend the time limits if satisfied that it would be unjust not to do so—Rule 8(5).
	The new rules contain specific provisions for appeals, in Part 3, and reviews, in Part 4, to be considered under the Anti-terrorism, Crime and Security Act 2001. Part 7 contains general provisions, which apply to proceedings before the commission and include rules governing the procedures to be followed by special advocates. As I am sure that the House knows, a special advocate is appointed by a law officer under Section 6(1) of the 1997 Act to represent the interest of an appellant in any proceedings before the commission from which the appellant and his legal representative are excluded. The commission may exclude the appellant and his legal representative from a hearing if it considers it necessary to secure that information is not disclosed contrary to the public interest—Rule 43.
	The new rules clarify the role of the special advocate and prohibit the Secretary of State from relying on material which has not been disclosed to the appellant, unless a special advocate has been appointed—Rule 37. The rules further detail when an appellant and a special advocate can communicate—Rule 36. The appellant can continue to contact the special advocate through his representative, after the Secretary of State has disclosed material to the special advocate, but the special advocate can contact the appellant only in accordance with directions of the commission.
	I have outlined the key provisions of the procedure rules and do not intend to burden your Lordships by going into detail about each draft rule.
	I commend the draft procedure rules to the House. I confirm that in my opinion they are compatible with the European Convention on Human Rights.
	Moved, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].—(Lord Filkin.)

Viscount Bridgeman: My Lords, your Lordships will be considerably reassured by the report of the noble Lord, Lord Carlile of Berriew, on the working of SIAC, which was comprehensively debated on 11th March during our debate on the continuation of Section 21 of the Anti-terrorism, Crime and Security Act 2001, led by the noble Lord, Lord Filkin. Have the comparatively minor adjustments suggested by the noble Lord, Lord Carlile, been incorporated into the rules? In other respects, we support the rules.

Lord Dholakia: My Lords, I thank the Minister for his explanation of the rules. One matter that causes me concern relates to Part 7, which covers, "General Provisions". Rule 34 deals with the appointment of special advocates. Rule 35 specifies the function of a special advocate, which is,
	"to represent the interests of the appellant by . . . making submissions to the Commission at any hearings from which the appellants and his representatives are excluded".
	There are further powers to cross-examine witnesses and make written submissions to the commission.
	Rule 36 is also the subject of serious concern. It states:
	"The special advocate may communicate with the appellant or his representative at any time before the"—
	Home Secretary—
	"serves material on him which he objects to being disclosed to the appellant".
	However, once the material is served on the special advocate, he,
	"must not communicate with any person about any matter connected with the proceedings".
	I know that we have argued that case at some length during the passage of the Nationality, Immigration and Asylum Act 2002, but we should seriously ask in the interests of justice whether such a condition is necessary.
	The question is: will the system will really work with such an approach? One already hears mutterings from those involved in immigration work that the new rules gag the special advocate about closed material that he cannot reveal or speak about. That rule should be urgently reviewed. I suggest to the Minister that my noble friend Lord Carlile of Berriew, who has done some considerable work on the matter, be asked to examine the rule as part of his role in the matter.

Lord Filkin: My Lords, I am happy to respond to both points. In answer to the question posed by the noble Viscount, Lord Bridgeman, about what action has been taken following the comments of the noble Lord, Lord Carlile, the new rules take them on board. They include provision for paper reviews; cases may be heard together; and the rules governing communication between the special advocate and the appellant following disclosure of closed material have been clarified.
	The question of the noble Lord, Lord Dholakia, perhaps goes less to the rules themselves—which are, of course, the subject of our debate—than to whether SIAC's procedures and the nature of appeals from the three types of cases to SIAC are necessary. With the respect always due to the noble Lord, that returns to the nature of the Act itself—or the sequence of three separate Acts that have chosen to put those powers and duties on SIAC and to establish the process of the special advocate.
	Rather than wearying the House with great detail, the rules attempt to balance liberties. They attempt to balance the need to protect the liberties of British citizens in general—in circumstances in which one believes that there may be some threat to their freedom and liberty as a consequence of the extreme circumstances and state of emergency in which we live—with the rights and liberties of a person whom the state has, in its opinion, a valid reason to believe to be, under one of the legs, a serious and present threat to the security of British citizens.
	The rules try to square the circle of those two conflicting liberties by trying, for example, to give someone who is being detained under the Anti-terrorism, Crime and Security Act 2001 a right of appeal. It does so in difficult circumstances because it seems to me that it does so when some of the evidence that has led to the state expressing its concern cannot be shown in public or to the appellant because doing so might in many cases undermine the sources whence the information came.
	I am sure that in the present circumstances I do not need to go into detail about why that threat is real rather than theoretical. In such circumstances, intelligence sources are a crucial part of the state's armoury in trying to protect its citizens from extreme or vicious attack.
	As the House knows, the process is an attempt to ensure that there is a suitably qualified person to ensure that the interests of the appellant are properly represented, who can read the confidential evidence and who can argue the case before SIAC in that person's interest. As I think is known, under Rule 36, the special advocate cannot communicate about the proceedings after seeing closed evidence. For the reasons that I have given, it is important that there is no risk of disclosure. There is no evidence that that procedure does not work. However, there is provision for SIAC itself to approve communication if it considers it necessary under Rule 36(4).
	Having said all that, the noble Lord, Lord Carlile, is in position on those issues. He has already considered some of them generally; I think that the House has appreciated his report. There will be further opportunities. We recognise that the measures are strong; we believe that they are necessary. The order seeks to put clear rules before SIAC in the interests of clarity, justice and the appellant. In that spirit, I very much hope that the House will accept that they represent progress, even though I might not necessarily convince everyone that the original legislation was desirable—although I firmly believe that it is myself.
	Moved, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].—(Lord Filkin.)

On Question, Motion agreed to.

Asylum (Designated States) Order 2003

Lord Filkin: rose to move, That the draft order laid before the House on 11th February be approved [11th Report from the Joint Committee].

Lord Filkin: My Lords, I shall start by reminding the House of the context of this debate. The recent publication of the asylum statistics for 2002 demonstrated to us all the scale of the challenge faced by Britain and the need for robust and radical measures to reduce the number of asylum claims. The Government, anticipating the nature of the problem, took a range of measures to grip it. They included the closure of the Sangatte camp through joint working with France; the significant extension and strengthening of our border controls so that they operate on French soil; the adoption of new benefits arrangements; the acceleration of decision-making, with 76 per cent of new substantive asylum applications received in the first half of last year decided within two months; enhanced contact management procedures and a steady increase in removals.
	The House is well aware from our debates on the NIA Bill that there are too many unfounded asylum claims. In 2002, about two thirds of claims were refused outright at the initial decision stage, and only around 10 per cent qualified for asylum. A significant number of the rest were clearly unfounded, which is unacceptable. The process incurs a considerable amount of public expenditure. For an individual family receiving both accommodation and subsistence support, support costs alone are some £10,000 a year. The processing of very many unfounded claims diverts resources away from processing the claims of refugees. Furthermore, it destroys the credibility of the asylum system in the eyes of the public, the implications of which are of considerable concern to many noble Lords. For those reasons, it harms genuine refugees, who may be tainted by the public's perception of the system.
	That is the difficult world context in which we must consider the non-suspensive appeal provisions in the Nationality, Immigration and Asylum Act 2002. As noble Lords who were all active in debating the Act will recollect, it contains two key elements for dealing with unfounded asylum or human rights claims. First, it provides for a clearly unfounded claim to be certified such that a person could appeal against the refusal of their claim only after they had left the United Kingdom. Secondly, it identifies 10 states from which the majority of claims were clearly unfounded.
	We have taken what I hope noble Lords will agree is a sensible approach to implementing the new powers. We have devoted our energies to applying the NSA powers to claims from the 10 listed states—alone, initially—and assessed their effectiveness over a four-month period. They could have been applied more generally, but we thought it wise initially carefully to bed in the process, listening to noble Lords' concerns about the measures by applying them to the 10 listed states. Today we have several months' experience to draw upon and can thus assess how successful the new provisions have been. So far, all the evidence is that they have been highly successful.
	We have applied several tests in assessing whether the provisions have worked. The first is that the number of claims from the 10 countries has declined quite dramatically. That is illustrative evidence that a high proportion of claimants in the country were trying it on to see whether they could use the asylum route to become economic migrants. For example, in September and October 2002, there were well over 250 claimants a month from the 10 listed countries. Although the figures are not final, around 40 claims were made in January. So there has been a considerable reduction—from well over 250 to about 40. The figures support the view that virtually all claims made by residents of those 10 countries are unfounded and that people stop applying when they know that their unfounded claims will be dealt with quickly.
	The second question is whether the procedures are working well. A concern expressed in the House was whether we would have in place procedures that ensured high quality decision-making. So far the procedure has stood up to the test, and we are optimistic about it. All applicants have access to legal advice and have their claims properly considered, with an opportunity to provide any evidence they have to support their claim. All decisions are checked by at least two officers, both of whom have been specially trained on the non-suspensive appeal provisions. The fact that a person is resident in a listed country does not result in a presumption that their claim is clearly unfounded from the outset, nor should it.
	Nor are such claims automatically certified. A decision on certification is taken only after the claim has been investigated on an individual, case-by-case basis and assessed objectively. As one would expect, the great majority of claims are certified because of the general safety of the countries from which applicants apply. But that is not a sufficient test in itself. The individual circumstances must also be considered. Over this period, only 2 to 3 per cent have not been certified. That proves the point both that the vast majority of cases were judged to be valid, non-suspensive ones. But they were not treated so universally—some were not so certified.
	In the January case of ZL v VL, the Court of Appeal, headed by the Master of the Rolls, unanimously dismissed a challenge to a decision of the High Court not to grant permission for judicial review against a certificate. In doing so, the court dismissed claims that the procedures at Oakington were not up to the mark. It said:
	"In our judgment there is no reason why the fast track procedure at Oakington should not afford adequate opportunity for asylum claimants to demonstrate, where this is the case, that they have, or may have an arguable case".
	We have always said that the failsafe element of the NSA process is the opportunity for individuals to seek judicial review. So the third question is how are the procedures holding up to legal challenge. Only around 25 JR applications have been formally lodged since the process started, and none of those has yet been successful. To date 20 appeals from those who have left the country have been heard. Twelve have been decided, all of which have been dismissed. Again, the figures speak for themselves.
	Finally, we are removing a significant majority of those whose claims have been rejected. We are not complacent about that. We have no hesitation in saying that the NSA process is working and the procedures have shown themselves to be fair.
	Having spent four months monitoring the scheme and implementing it carefully, it is time to consider whether it should be extended to other states. A prerequisite of the Act for any country to be added is that it meets two tests. The Secretary of State must be satisfied, first, that there is in general in that state no serious risk of persecution of persons entitled to reside in that state or part, and, secondly, that removal to that state or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the human rights convention.
	In addition to applying the legal test, we have taken account of the statistical evidence at decision-making and appeal stages and of the number of applications received from those potential countries. We have also had regard to the intention to expand the non-suspensive appeal process in a measured way. We have not, therefore, felt obliged to include in the draft order every state that might meet the legal test. We have included only those where it seems that it did meet the test and where the numbers made it sensible to do so.
	Bearing all those factors in mind, we decided that seven states should be included. They were selected on an individual basis following the assessment process that I described. They should not be seen as a group, except that they have met the test and there would be an apparent benefit in their being added to the list of non-suspensive cases. We are satisfied that in all those states there is in general no serious risk of persecution, and that removal to them would in general not breach the United Kingdom's ECHR obligations. We do not assert that the seven states are 100 per cent safe for all residents at all times. No state can claim to be 100 per cent safe. We never argued for that to be the case for the 10 EU accession states listed in the Bill. Indeed, the statute from which I read earlier does not even require that. It uses the term "in general" rather than "universally" the case. However, they are places where persecution and human rights breaches are rare, and, for those reasons, the further seven states merit inclusion on the list.
	I must turn to an area of some embarrassment and offer an apology to the House in one respect. When we discussed the issues in the Bill, the impression was created by the Government that, although the 10 accession states were listed in the Bill, the Bill gave a power to add subsequent states. I need not go into the exact detail of what was said, but it is clear to me that the House was under the impression from what I said in this House and what my honourable friend Beverley Hughes, the Minister of State for Citizenship, Immigration and Community Cohesion, said in another place that we expected that, before adding further states, we would, as part of the process, be able to seek the advice of the advisory panel on country information.
	We have, in a sense, been under the pressure of needing to move forward and address the scale of the problem that we face in trying to separate genuine asylum cases from economic migrants. My embarrassment is to find myself before the House at a time when, due to the pressure of circumstances, we have had to add seven more states to the list, although the advisory panel on country information is not yet up and running. I shall not labour the point, but the House will be aware of my embarrassment in that respect.
	We are working systematically through the provisions of the Bill to implement all of them at the earliest opportunity. The House will know that over 70 per cent of the Bill's provisions will have been implemented by tomorrow, 1st April. However, when, in my preparation for the order, I became aware of the circumstances, I decided to bring to the House the best information that I could. I have discussed the issue with officials and with ministerial colleagues in the Home Office. We will press on with establishing the panel, and I can advise the House that, within the next month, we intend to write to organisations that we wish to see represented on the panel. As soon as nominations are in, we will take steps to appoint a chairperson from among the members.
	The panel's first meeting could then take place as soon as possible thereafter, by the summer, taking account of the wishes and commitments of the chair and members. We intend to move forward vigorously on the matter, and the House will accept my apologies for not having had the panel in place—due to the pressure of work and the pressure of circumstances—before adding to the list.
	The function of the panel will be to consider and make recommendations to the Secretary of State about the content of country information. For any states that we consider adding to the list after the panel's establishment, we will, as promised, invite comments from the panel about the country information on which we propose to make our decisions. That information, as is the case for all countries, will be in the public domain. In respect of the seven states that we propose to add by the order, the Secretary of State will have an ongoing obligation to keep under review whether they continue to meet the test set out in Section 94 of the Act for inclusion in that list. The country information for those states will, of course, be the crucial component that must be kept under review, and the views of the panel on the content of that information will be taken into account for those seven states as it will for other countries.
	In view of the successful operation of the safe country procedures to date and the successful outcomes in the courts, we decided that it would be appropriate to take a measured step in adding to the list at this stage. I have said that the panel will be set up as soon as possible, and we will have regard to its comments on country information relating to the seven states or any future ones. I have already mentioned the procedural safeguards that apply to the consideration of claims from residents of listed states. The same procedures will, of course, be in place for the additions to the list. If a claim, after individual consideration, is held not to be clearly unfounded, it will not be certified. If a claim is held to be well founded, as some will be, leave to enter or remain will be granted.
	The order is a sensible and measured step towards the increased use of non-suspensive appeals. I commend it to the House.
	Moved, That the draft order laid before the House on 11th February be approved [11th Report from the Joint Committee].—(Lord Filkin.)

Lord Dholakia: rose to move, as an amendment to the above Motion, at end to insert "but this House regrets that the order has been introduced before the establishment of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002".

Lord Dholakia: My Lords, I do not underestimate the Minister's task of dealing with a large number of applications from asylum seekers. I am aware that the Minister is closely involved with our European partners in examining how a Europe-wide policy on asylum matters can be established. The Minister need not have apologised. He has always shared his concerns with your Lordships' House, and I appreciate that.
	It is in everyone's interest that asylum applications should be dealt with speedily and that those who qualify to remain should be settled into the community without much delay. Equally, the primary task of such a speedy system is to ensure that fairness is not sacrificed to speed. I am aware that a fast-track pilot scheme was announced. It appeared on the Immigration and Nationality Directorate website. It would be helpful if adequate consultation with the relevant non-departmental bodies, such as the Refugee Legal Centre, could be established prior to the project, which, I understand, is to be implemented on 7th April. We need information about the detail of procedures and timescales for the initial decision-making process.
	There ought to be public confidence in the system. If that exists and the system is fair and just, that will alleviate many of the problems associated with the delays. Public confidence will be shaped by the quality of service and a decision-making process that can distinguish genuine asylum seekers from economic migrants. We have already supported the Government's action on managed migration and matters relating to seasonal workers. Those of us on these Benches and on the Conservative Benches supported the establishment of an advisory panel on country information under Section 142 of the Nationality, Immigration and Asylum Act 2002. We were motivated by the fact that, in some cases, a wrong decision at this end could have serious consequences for the applicant.
	If an appeal is denied here, the next best option is to have up-to-date information about the country to which the applicant is to be deported. Why has it taken so long to proceed, when we have agencies such as Oxfam, the Save the Children Fund, Amnesty International and others at the coalface in those countries and have a wealth of information about what goes on there? The enlargement of the "white list" should go hand-in-hand with the work of the advisory panel.
	I am delighted with the Minister's explanation of how such a panel would be set up shortly. However, I must explain what I regret about the order. The decision to extend the "white list" of 10 EU accession states in central and eastern Europe to include seven more countries will mean that applications from thousands more asylum seekers will officially be presumed to be unfounded. Ten states are listed in Section 94 and Section 115: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and the Republic of Slovenia. At the time of the passage of those sections, our criticism was deflected and, to some extent, we even accepted the explanation that those countries were EU applicant countries and met all the human rights requirements.
	As Beverley Hughes stated on 5th November 2002, all those 10 countries are democracies. They have functioning criminal justice systems, a commitment to human rights and to targeting and eradicating elements of society that discriminate against minority groups. She also highlighted the fact that in those countries more than 90 per cent of those who appealed against a refusal to grant asylum had their appeals dismissed.
	At a recent meeting in Luxembourg, as noble Lords will know, the Justice and Home Affairs Council adopted a declaration that member states should start from the presumption that any asylum application from a national of one of the 10 states was manifestly unfounded. That view is not universally shared. The order adds Albania, Bulgaria, Serbia and Montenegro, Jamaica, Macedonia and Romania. Can similar things be said about those seven countries as can be said about the existing "white list" countries?
	According to the Guardian on 7th February 2003, Mr Blunkett intends to,
	"build upon the success by adding a further 7 countries—all democracies with effective criminal justice systems, in which it is frankly not credible to suggest people routinely fear for their lives".
	According to the same Guardian article, the parliamentary Joint Committee published a report a year ago contending that the United Nations did not accept that any one of the seven countries to be added to the "white list" could be declared safe. The UNHCR says that, in its experience, it is impossible to exclude, as a matter of law, the possibility that an individual could have a well founded fear of persecution in any country, however great that country's commitment to human rights and the rule of law.
	Safe country lists are at odds with the fundamental premise of refugee protection that everyone has the right to seek and to enjoy asylum from persecution and to be given access to fair and efficient asylum procedures. The UNHCR argues that a safe country list must never be used to bar asylum seekers from entering the asylum procedure altogether.
	What is the common factor that binds these countries together? On what basis have they been chosen? Who has decided that they carry no risk of serious persecution?
	Moreover, it is important to question why the Government are adding to the white lists when Section 94 is not yet in force and Section 115 has only just come into force. I propose that it is necessary to establish whether the lists function effectively before they are extended. According to the Immigration Advisory Service, the effect of these measures on the numbers will be small. It argues that,
	"the impact of adding these countries to the 'white list' is unlikely to be great . . . The figures for the last quarter of 2002 show that 270 Albanians, 565 Jamaicans and 380 Romanians claimed asylum. Moldova, Serbia and Montenegro (including Kosovo) were not even listed separately but came within the total for 'Europe Other' amounting to 65 or 'Other Former Yugoslavia' amounting to 30. On an annualized basis this is less than 5,000 individuals—some 5 per cent of applicants. The Minister should be asked how many asylum seekers came from Moldova, Serbia and Montenegro (including Kosovo). Is this worth the effort and expense to the taxpayers"?
	We have many specific concerns about each of these countries as potential safe havens for asylum seekers. Organised crime is a major problem across some of the central and eastern European countries, such as Albania and Moldova, where there are high levels of violent crime associated with gang operations.
	According to the US Department of State, police officers in Albania are largely untrained, ill paid and often unreliable—a fact that is regarded as a major hindrance to public order and internal security. There is widespread police corruption. There are credible accounts of judges being intimidated or bribed by powerful criminals. Albania is a major point of origin and transit in the trafficking of women and children.
	Although the Albanian Government have an anti-trafficking strategy, the police force and judiciary are generally reluctant to view trafficking as a serious human rights violation. Indeed, the US Department of State has also reported that Albanian police are frequently involved, directly or indirectly, in the trafficking of women for prostitution. This is a huge concern for the organisation Women Against Rape which works with individuals who have suffered physical abuse due to their ethnic origins.
	The Immigration Advisory Service is concerned that the police may fail to offer sufficient protection for those who are targeted by criminal gangs. The case, Albert Shperdheja v The Secretary of State for the Home Department, UKIATO3127, is a clear example that it was held that,
	"the authorities in Albania will not be able to offer this particular Appellant the protection that he needs in the lights of their unreliability, ineptitude and widespread corruption".
	Although there is no evidence of the systematic abuse of human rights as a matter of state policy, Albania faces a number of human right challenges. According to the FCO these are exacerbated by institutional weakness, endemic corruption and poorly developed democratic and civic culture. It argues that the implementation of human rights legislation has been flawed and that Government attention has been diverted by a series of political and economic crises.
	Similar problems exist in several of the other seven countries to be added to the white list. In Jamaica, the Immigration Advisory Service remains concerned about police brutality and impunity, arbitrary arrests and detention, an over-burdened judiciary, poor prison conditions, violence and discrimination against women and homosexuals, cases of social discrimination against persons with disability and members of the Rastafarian religion.
	Furthermore, Jamaica is reported to have one of the highest crime and murder rates in the world. It has a history of violence by gangs and rival political parties. Statistics show that more than 920 people were murdered in 2002 due to rising levels of crime and violence. This problem is exacerbated by the negative influence that the police have on the community. They are not seen to be committed to their responsibility to provide protection to the public.
	In addition to these widespread problems, there is concern about the welfare of specific communities who are targeted and discriminated against in these countries. Ethnic minority groups, such as Roma and Egyptians, are targeted in Albania, Serbia and Montenegro. UNHCR reports from January 2003 state that these groups in particular should,
	"continue to benefit from international protection in countries of asylum".
	In this vein, the Immigration Advisory Service has grave reservations about the IND failing to take UNHCR's opinion into account with regard to these groups.
	As a further example, I draw the Minister's attention to the fact that the legal status and protection on the ground in Kosovo remain unstable. On one hand, ethnic Albanians continue to call for independence and have complained that UNMIK is taking too long to hand over authority. On the other hand, the Serbian President wrote to NATO and the Security Council requesting permission for Serbian police and military forces to return to Kosovo. According to the BBC, Kosovo was supposed to get 4,700 international police to establish law and order, but as of February 2002 there were fewer than 2,400 police. K-FOR is therefore involved in policing, which indicates that there is serious doubt as to whether protection will ever be made available to ethnic minority groups.
	Adequate protection is not available in Kosovo for the groups of people mentioned above. Adding them to the Section 115 white list could put individuals at serious risk of a return to persecution and treatment contrary to Article 3 of the Human Rights Act.
	A further point of concern is procedural. I should like to draw attention to the fast-track Oakington reception centre near Cambridge, where the asylum seekers will be sent first and where applications will be assessed within 10 days. On 7th February 2003, the Guardian reported that it is here that those who cannot,
	"rebut the presumption that their asylum or human rights claim is clearly unfounded"
	will be rejected.
	It is important to underscore that this announcement comes shortly after the disclosure that the £4.5 million Oakington centre is so underused that on one day in January only 32 of its 250 places were in use. Is this an attempt by the Government to find an appropriate use for the centre?
	I should like to highlight that the Government promised that they would create an independent advisory panel on country-specific information. Now that we have that information, it is to be hoped that they will continue to make and influence the decision-making process in relation to individual applicants. Beverley Hughes has vaguely stipulated that the Government expect to establish an advisory panel on country information "in the coming months" and I am delighted that the Minister is going to invite the appropriate people with qualifications to comment.
	We have always been against the concept of a white list and, as we recall, even the Labour Party was against one when it was in opposition. We continue to believe that each case should be judged according to its own merits and should consider the particular facts of each individual case. That will not undermine the quality of decision-making, especially when one takes into account the quality of information available to the Home Office with regard to a specific country, in particular since situations in a country abroad can change quickly.
	It was not my intention in any way to try to hinder the process that the Minister is trying to establish under the order. I want simply to show my regret that so many other factors need to be taken into account when adding to the list. I beg to move.
	Moved, as an amendment to the above Motion, at the end insert "but this House regrets that the order has been introduced before the establishment of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002.—(Lord Dholakia.)

Viscount Bridgeman: My Lords, as was made clear by my honourable friend Mr Humfrey Malins in another place, we are generally in support of the order. However, we must not lose sight of the fact that the original 10 countries in the list are all applicants for accession to the European Union. The other list which we are considering today comprises a much more disparate lot. As both my honourable friend Mr Malins and Mr Simon Hughes from the Liberal Democrat Benches made clear in another place, there have been a number of instances of abuse in the countries, many of them carefully documented by Amnesty International, which give rise to real concern.
	The noble Lord, Lord Dholakia, has given a vivid description of the problems facing many of them, in particular Albania. I would add only that there is considerable evidence of police brutality in Romania and Bulgaria and of police indifference to the plight of homosexuals in Jamaica.
	However, I welcome the Minister's detailed explanation of the process the Government have followed in assessing which countries are to be put on the list. We accept that. Nevertheless, there have been substantial objections from, among others, Amnesty International, the Law Society and the Immigration Advisory Service. I would like clarification from the Minister on one point. Does the scrutiny of the countries concerned extend to non-state persecution; for instance, a fear by an applicant that he or she might be attacked by a gang on return?
	All this adds up to the fact that much will depend on the individual scrutiny of every case and the Minister has reassured us that that will apply. In the light of the serious abuses which have been cited in a number of the countries on the list, this is the only effective safeguard, at least until the establishment of the advisory panel on country information. That is a real concern which we share with the noble Lord, Lord Dholakia. I echo his request for information on when that will be established.
	Finally, perhaps I may point out that we are satisfied with the quality of the assessment teams which look at these cases. We therefore accept that the measure is necessary and with those reservations we support the order.

Lord Filkin: My Lords, I thank the noble Lord, Lord Dholakia, and the noble Viscount, Lord Bridgeman, for their comments and questions on the order and I shall do my best to respond to them. I may not do so in the same order as they were raised and if I miss any points, I hope that noble Lords will accept a letter from me on the details. A great deal was raised and it merits a response, even if it does not come instantly from the Dispatch Box.
	The noble Lord, Lord Dholakia, asked about the fast-track pilot. It is intended to commence on 10th April and the aim is for about 90 asylum claimants a month to be fast-tracked from claim through to decision, and both tiers of appeal to removal, if unfounded, in about four weeks. The fast-track appeal procedure rules were laid on 20th March, allowing for a 21-day period before implementation through to 10th April. The aim is to test how quickly and yet properly we can make decisions and process appeals.
	Officials from the IND and the Legal Services Commission are presently consulting legal representatives about providing legal advice for claimants before being put through the pilots. The pilot builds on the success of Oakington but goes slightly faster in building in a fast appeal procedure.
	Perhaps I might digress for a second and contrast that, which is still trying to ensure that even what on the face of it appears manifestly unfounded cases still have a proper process, with what happens in a number of other member states. In some cases, when applicants come to a border, before they are taken across the border officials assess almost instantaneously whether they believe a person comes from country X or country Y. On learning the result, the person is then told to go away, not having been given the benefit of the care and consideration that we seek to offer even on a fast-track pilot process.
	Perhaps I may weary the House with a few statistics which put into context the reasons why we have judged that these countries are ones with which in general—as the statute makes clear—it is reasonable to deal in this way, without prejudice to examining the merits of individual cases to see whether they should pass to a non-suspensive process.
	I have not added up on a calculator the total number of applications from these seven countries in 2001 and 2002, but we are talking of roughly 6,500 to 7,000 applications in each of the past two calendar years. I need only give the figure of £10,000 per year subsistence costs, let alone the legal costs of processing those applications, to indicate why this matters. In 2002, around 7,000 decisions were reached. I shall set out the exact figures in a letter to the noble Lord, Lord Dholakia, which I shall copy to the noble Viscount, Lord Bridgeman.
	Of the 7,000 decisions relating to applicants from the relevant countries, only 270 were granted asylum on an initial decision. Adding the numbers that went to appeal—again, I shall set out the exact numbers in my letter—we are talking about a relatively small number of applicants. Four hundred or so were granted asylum on appeal. Thus, in total, around 600 or 700 applicants were granted asylum either on initial hearing or on appeal from the 7,000 that were originally admitted. That does not mean to say that no one from those countries should be granted asylum. All it signals is that a very substantial proportion of applicants, some 90 per cent, even when they have worked through the full suspensive process of appeals—I do not need to remind the House that a person can have at least two appeals, or three if judicial review is taken into consideration—is still found not to merit asylum.
	I was asked whether a presumption will be created that claims from those seven countries must be unfounded. The answer to that is no. There is no presumption that claims will be clearly unfounded. I can assure the House that each case must and will be considered on its merits. Caseworkers have been specially trained to deal with the process and they will approach each application with an open mind. All cases are considered on their individual merits. If a particular case is not clearly unfounded, then it will not be certified and the applicant will be refused with a suspensive—that is, an in-country—appeal, or they will be granted asylum or leave to remain, if appropriate.
	I hope also that I have been able to make clear the rather cautious process by which we are implementing the non-suspensive appeal. Here I mention again the specially trained caseworkers and the use of the skills gained at the Oakington centre. While not all cases are being dealt with at the centre—only those which merit going through it are dealt with there—I recall that in our debates on the Nationality, Immigration and Asylum Bill, the centre was considered by all sides of the House to have a high reputation for the care and thoroughness with which it dealt with its cases. People were given proper legal advice and procedures carefully followed. Furthermore, caseworkers have been properly trained and thus the quality of their decisions was much higher than elsewhere.
	I have been asked whether there is a common factor, such as whether the countries are all accession states; there is none. We have not pretended that a common factor exists and we see no reason why there should be one. If any common factor could be cited, it is that, first, in the opinion of the Home Secretary these states meet the two tests that I have indicated under the Act and, secondly, the evidence from the historic analysis that I have just set out for noble Lords indicates that it is worth while to consider in principle these countries for the use of the non-suspensive appeal. In other words, substantial numbers of people come in from those countries and claim asylum, but it appears that the vast majority do not merit it. That is the common factor.
	A whole range of questions was put to me concerning whether in all of these countries, in all circumstances, people were safe. Although I could go through many briefing notes, I think the fundamental point to make is that we have not stated that the countries are safe in all respects, at all times, for all people. It would be wrong and foolish to do so. We are aware of certain areas of possible weakness, some of which were also signalled by the noble Lord, Lord Dholakia, in his remarks. It is the job of caseworkers to bear in mind those areas of potential weakness when they consider their decision as to whether to certify a non-suspensive appeal process. I would expect them to err on the side of caution where there is doubt.
	The fact that there is a non-suspensive appeal does not mean that there is no appeal. It is perfectly possible for people, who have a lawyer as part of this process, to signal to the British lawyer that they wish to mount an appeal even though it has to be a non-suspensive appeal. People have done so and there are a number of cases where such appeals are going through.
	As I have previously signalled, I do not believe that we have failed to take account of the UNHCR's view that it is impossible to say that a country is completely safe. As I said to him last week, I believe that Ruud Lubbers is giving excellent leadership in trying to ensure that not only European Union member states but other countries are better organised to deal with their responsibilities under the Geneva Convention 1951 while recognising that there is substantial abuse in the system. That is the challenge that we as a government face. That is why we wish to work closely with him in the future.
	The fact that a country is on the list does not replace individual considerations. For example, in Albania, if a case is considered not to be clearly unfounded it will not be certified. I shall not go into more detail on that as it would weary the House. I shall respond by letter to some of the more specific points that have been raised.
	As to Oakington and its occupancy, we feel that recently we have been rather harshly treated by the press on this issue. Let me give our explanation. The low level of occupancy at Oakington in January was a result of the success of the non-suspensive appeal implementation strategy for the 10 EU accession states. To focus on the quality decisions and to maximise the resources focused upon the new NSA processes, we restricted the use of Oakington temporarily from 7th November onwards. In other words, we wanted Oakington to be available to use its specialised skills, processes, accommodation and facilities to bed-in the NSA processes from 7th November through to mid-January 2003 for the 10 country claimants. The level of claims dropped so dramatically so quickly that it led to a situation where we were being blamed for our own success. It is harsh being in government at times, but that is the reality. Once we were satisfied that the numbers had dropped and that the process worked, we started carefully to build-up the throughput of Oakington's other cases.
	The noble Viscount, Lord Bridgeman, asked whether the protection extends to non-state persecution. The answer to that is, categorically, yes. If a case is made that a person is at risk of significant non-state persecution, he or she can get protection. It is not only state persecution that applies.
	I shall not weary the House by going into more detail. I hope that noble Lords are aware of the care with which we are implementing the non-suspensive appeal process. We shall bear in mind the point made about whether there is a risk in some countries and be prudential in our approach. I shall not embarrass the House again by expressing my regrets about the advisory committee. We shall make vigorous progress in the timetable I have indicated. I hope that the House will recognise that we are approaching these matters with prudence while, at the same time, recognising that we face a serious challenge. This is a part of the process of meeting that challenge.

Lord Dholakia: My Lords, I thank the Minister. I apologise for the length of my contribution to the debate. From time to time, the Minister and I may disagree, but that can never detract from his openness and honesty when dealing with this subject. I am satisfied by what he has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	On Question, Motion agreed to.

Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.
	[The sitting was suspended from 8.24 to 8.30 p.m.]

Sexual Offences Bill [HL]

House again in Committee on Clause 1.

Lord Falconer of Thoroton: moved Amendment No. 7:
	Page 1, line 18, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply"

Lord Falconer of Thoroton: We now turn to Clause 78. I have been extremely grateful for the discussions I have had with a number of noble Lords inside the House and members of the judiciary outside the House in considering Clause 78. I shall start by explaining why we included these provisions in the Bill.
	In its consultation paper Setting the Boundaries, the independent review body proposed that there should be a statutory list of circumstances in which it could be conclusively presumed by the jury that the complainant did not consent to sexual activity. The aim was to clarify existing case law and to incorporate it into statute, thereby allowing Parliament to give a clear indication to the courts and society at large about the circumstances in which sexual activity will not be condoned and in which there can be no doubt that a jury will pass a guilty verdict in relation to any defendant who is proved to have committed the relevant act.
	We support the general intention of the review body and agree that making a clear statement in the legislation about the circumstances in which sexual activity is not acceptable will provide juries with a clear framework within which to make fair and just decisions. It would also serve as a clear statement to the public more widely. This should redress the balance in favour of victims. We hope that this will encourage victims to place their faith in the criminal justice system and to bring more cases to trial.
	However, we were not satisfied that the circumstances proposed by the review body were all ones in which it could be safely and conclusively assumed that consent was not present. Notwithstanding existing case law, we believe that, in the interests of justice to the defendant, a conclusive presumption of guilt should be allowed only in very narrowly defined circumstances in which it is impossible to conceive that the complainant could have consented to the alleged sexual activity.
	In our view, there are only two circumstances in which it can be conclusively presumed that consent was not present—namely, where the prosecution is able to prove that the defendant practised deception about the nature or purpose of the sexual act or where the defendant impersonated someone known personally to the complainant in order to obtain consent. In such cases, there can be no doubt in anyone's mind that the activity was non-consensual.
	In addition, where someone claims that he believed the complainant was consenting solely on the basis of what he was told by a third party, we are of the firm view that he should be conclusively presumed to have acted unreasonably. Assuming that the prosecution proved that the complainant did not consent, the defendant will be found guilty.
	Beyond this, other circumstances suggested by the review body may give rise to serious doubts about the ability of the complainant to exercise a free choice. However, in those cases, we believe that the defendant should still be given the opportunity to rebut any presumptions made against him. Where, for example, someone engages in sexual activity with their kidnapper while being held hostage for a ransom, empirical evidence suggests that we cannot rule out the possibility, however remote, that the sexual activity might be truly consensual. The kidnapper would still be guilty of abduction but not of the sex offence if he could establish that he truly believed the complainant consented and that it was reasonable in the circumstances so to believe.
	By way of further example, where a person is physically disabled and his normal means of communication is by means of sign language that only a trained person could understand, this does not rule out the possibility that the disabled person may have communicated his consent at another time using an intermediary.
	In light of these concerns, should we limit ourselves to listing in statute the two sets of circumstances in which it should be conclusively presumed that consent is not present and that all other cases should be left to the prosecution and defence to argue as they do now, without making any statutory changes to that process? We think not. That would ignore all the evidence that indicates that victims currently do not have faith in the court process and that the attrition rate in rape and other sexual abuse cases is too high. We discussed that before the supper break. We need to take steps to raise the public perception of the ability of our courts to deliver justice.
	We think, therefore, that we should incorporate in statute rebuttable presumptions where the prosecution proves that one of the circumstances in Clause 78(3) existed, that the defendant knew this and that the complainant did not consent. This will make it crystal clear that the burden lies on the defendant to prove that he believed that the complainant was consenting. This clearly shifts the balance in favour of the complainant, although only if the circumstances and the victim's lack of consent are established. It is fully intended to do so, because the case has been moved out of the arena of balancing "he said" against "she said" by the strength of the evidence produced by the prosecution.
	A clear signal is then sent to everyone about the circumstances in which sexual activity will be presumed to be non-consensual, and anyone who decides to engage in sexual activity in one of those defined circumstances cannot fail to be aware of the obligation upon him to make sure that his sexual partner does, in fact, consent. Where there is any doubt, he should desist. We believe that there is a great deal to be gained from having guidelines approved by Parliament and enshrined in statute.
	However, since publication of the Bill, our proposals have been criticised by judges and other legal practitioners as being overly complicated and that there would be a risk of juries acquitting defendants not on the facts of the case but because they do not understand the direction they have been given or how to assess the evidence.
	There would also be a risk in cases where a jury convicts the defendant that the complicated nature of these provisions is likely to lead to appeals in respect of whether the directions to the jury were either accurate or appropriate.
	We have listened to these criticisms and discussed them in particular with the noble Lord, Lord Thomas of Gresford. However, we did not restrict our discussions but discussed the matter widely. We have also spoken to members of the senior judiciary. We have come to the conclusion that Clause 78 could and should be simplified, while retaining our policy objective of making clear in statute that where sexual activity is shown to have taken place in certain specified circumstances it will be presumed that consent was not given.
	As the clause was drafted in the introductory print of the Bill, there were two rebuttable presumptions: an evidential one in relation to lack of consent and a legal or persuasive burden in relation to belief in consent. We are, in tabling government Amendments Nos. 380, 381, 382, 383, 384, 385 and 387, dropping from the clause the weaker evidential burden in relation to lack of consent. This burden was always going to be relatively easy for the defendant to rebut as all he would need to do would be to go into the witness box and say that the complainant seemed to be consenting.
	We are, however, retaining the stronger, and more effective, persuasive burden in relation to belief in consent. So if the prosecution proves the existence of one of the circumstances in subsection (3), that the defendant knew of the circumstances and that the complainant did not consent, the defendant will be taken not to have believed that the complainant consented unless he is able to prove that he did believe that the victim consented. This places a persuasive burden on the defendant in relation to belief in consent. He will need to persuade the jury, on the balance of probabilities, that, notwithstanding the existence of any of the circumstances in subsection (3)—for example, that the victim was subjected to violence immediately before the act—he nevertheless believed that the complainant consented.
	We have also separated off into their own clause the conclusive presumptions on consent in subsections (5) to (8) of the clause as it stands in the introductory print. That is done by Amendment No. 398.
	Our purpose is to simplify the existing clause and to signal the difference between the two types of presumption. We are making no changes to the provisions relating to conclusive presumptions. Amendments Nos. 7, 18, 29, 41 and 399 are purely consequential textual amendments resulting from the change.
	While the conclusive presumptions have also been criticised, it is important that they stay in the Bill. The list of circumstances at Clause 78(8) relates to situations in which it is to be conclusively presumed both that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act.
	The first of these circumstances in subsection (8)(a) relates to occasions on which the defendant intentionally deceives the complainant as to the nature and purpose of the relevant act. For example, it applies when a doctor digitally penetrates the patient, telling her it is necessary for medical reasons when in fact it is for his own sexual gratification. That is taken from a precedent that has been firmly established by case law. We are not proposing any changes to the existing law. We are only making it clear in statute. We are trying to bring the law on sexual offences in one place.
	The second of these circumstances is based on Section 1(3) of the Sexual Offences Act 1956, which provides that a man who induces a married woman to have sex with him by impersonating her husband commits rape. We have changed that so that it applies to impersonating any person known personally to the complainant. Again, we are simply putting the existing law in one place.
	Subsection (5) contains a different kind of presumption. When the prosecution is able to prove that the defendant did the relevant act and that the complainant did not consent to it, and the only evidence adduced by the defendant about the circumstances that led him to believe that the complainant consented relates to something said or done by a third party, the defendant will conclusively be presumed not to have met the requirements of the reasonableness test. It is the personal responsibility of the defendant to ensure that the complainant has given consent to the relevant act, and the provisions in subsection (5) make it clear that a defendant cannot rely on a third party to discharge that responsibility for him. Thus, for example, it will not be sufficient for a defendant to claim that he believed that the complainant consented because a friend told him that the complainant wanted to have sex with the defendant and that he should ignore any protests by the complainant because she would be pretending to resist.
	Amendments Nos. 394 and 395 are minor drafting amendments. The effect of subsection (3)(a) and (b) is that where there is violence or a threat of violence immediately before the relevant act, Clause 78 applies. Subsection (4) extends that so that when there is a series of sexual acts, Clause 78 applies where the violence or threat took place immediately before the first of those acts. Amendments Nos. 394 and 395 change subsection (4) so that instead of referring to the time "when" the relevant act began, it refers to the time "immediately before" the relevant act began, thus more closely reflecting the wording in subsection (3).
	We believe that Clause 78 as amended by these amendments achieves the policy intention stated in Setting the Boundaries, listing those circumstances where consent will be presumed absent or most likely to be absent in a workable way. It is both simple and clear. I appreciate that amendments have been tabled in relation to the particular circumstances that should be covered in our list of rebuttable presumptions. They have been grouped for debate at a later date and, with the leave of Members of the Committee, I will defer discussion on what is in Clause 78(3) until those points have been made. I beg to move.

Baroness Noakes: I thank the Minister for introducing the amendments in this group and for his helpful letter of explanation, sent when he tabled the amendments—especially for the text of the redrafted Clauses 78 and 79. That made our lives a little easier.
	I shall speak to Amendments Nos. 17, 28, 40, 379, 385, 386, 396 and 397, as well as to clause stand part. I shall attempt so far as possible to take into account the impact of the Minister's amendments and avoid overlap.
	It is probably easiest if I start with Amendment No. 385. In that case, the Government have agreed with our amendment. Subsection (2) of Clause 78 was deemed unworkable by very many people. I am glad that the Government have withdrawn that aspect of Clause 78. As the Minister explained, the meat of Clause 78 will now be found in two places: subsections (1) and (3) as redrafted in one new clause. My Amendments Nos. 379 and 386 propose the deletion of subsections (1) and (3). Hence, some of the issues that caused me to table those amendments remain after the redraft that the Minister has just explained.
	I deal first with the shifting burden of proof for the defendant which was formerly in Clause 78(1)(b) but remains in the redrafted Clause 78. We welcome the abandonment of Clause 78(1)(a) and its confusing presumption of lack of consent. However, Clause 78(1)(b) as it remains, with its presumption of lack of belief in consent, raises issues of fairness in the shifting of the burden of proof to the defendant. The Criminal Bar Association has pointed out that if the circumstances set out in what is currently Clause 78(3) are established, there will already be a heavy evidential burden on the defendant with regard to the mental element, especially since the objective reasonableness test in Clause 1(3) applies. The association believes that the shifting burden of proof will be an unnecessary complication for trial judges and juries and will not increase conviction rates. I look to the Minister to comment in particular on the workability of the redrafted part of Clause 78. Workability, as I said in connection with other groups of amendments, is a key issue for these Benches.
	Clause 78(3) survives unscathed in the Government's redraft. My Amendment No. 386 proposes the deletion of the clause, but that is on a probing basis. In the report Setting the Boundaries, the recommendation was that the law should set out a non-exhaustive list of circumstances where consent would not be present. However, it would be left to the court to consider the specific circumstances. In several respects, the Government's rebuttal presumptions do not go as far as suggested in the report. For example, the report suggested that the list should cover fear of serious detriment such as the loss of a job, and that does not find its way into Clause 78(3).
	One of the problems with definitive lists such as that in subsection (3) is that other circumstances will be treated as of much less importance by reason of their exclusion from the definitive list. Indeed, in the Government's White Paper, Protecting the Public, they said:
	"Including such a list . . . will . . . send a clear . . . signal about the circumstances in which sexual activity is likely to be wrong".
	The problem is that an equally clear signal is sent that circumstances not on the list are not necessarily wrong. I shall listen carefully to what the Minister has to say about how flexibility in the law will be retained in this definitive list. Will he say, for example, how he sees items not on the list—for example, the fear of economic harm—interacting with the list as drafted?
	Amendments Nos. 396 and 397 delete subsections (5) to (8) of Clause 78, the subsections which survive in the second redrafted clause. I have a problem with conclusive presumptions. Being black and white, they give no flexibility to cope with situations that are grey, and it is in the grey areas that we find the majority of human existence. I start with subsections (5) and (6), which result in conclusive presumptions about what reasonable persons would think or do where the only evidence put forward of a defendant's belief rests on something said or done by a third party.
	My question to the Minister is why it was necessary to put these provisions in the Bill and why they are in the form of conclusive presumptions. Using the objective test of reasonableness in Clause 1(3), we have a test as to whether a reasonable person would doubt consent and then act in a sufficient way to resolve doubt. Do the Government believe that a jury faced with no evidence of consent other than second-hand evidence would conclude under Clause 1(3) that the defendant had thought and acted reasonably? I cannot think of a set of circumstances that would lead a jury to that conclusion.
	Having introduced the objective test of reasonableness, the Government should stick to it, however. If they did not they would say that, judged objectively, someone may have reached a reasonable conclusion about consent and acted reasonably to resolve any doubt, but is still guilty because of the conclusive presumptions set out in Clause 78. What is implied is that the Government do not have complete confidence in the objective tests that they have drafted in Clause 1(3).
	Clause 78(7) and (8) also involves conclusive presumptions about consent and belief in consent, as the Minister explained. It deals with very black and white circumstances. I completely see that, in the majority of cases, deceit such as that referred to will mean that consent does not exist as under the current law. Is the Minister convinced that there are no grey areas in which, for example, it is clear that consent would have been given despite the deceit?
	I would feel more comfortable with those subsections if rebuttable rather than conclusive presumptions were set up. How can the Government be sure that no injustice could be done through the conclusive presumptions?

Lord Thomas of Gresford: I am listed among those opposing the Question whether Clause 78 stand part of the Bill. The whole clause is misconceived. It is not right in principle and it is totally impractical.
	I shall deal with the question of principle first. Has the Minister received advice concerning the human rights aspects of the presumptions that he has made conclusive? No doubt advice has been received. But they are not compatible with Article 6(a). The Minister knows that; there is no need for me to go into a lengthy discussion of the convention. Conclusive presumptions are generally contrary to that convention.
	On practicality, we are trying to arrive at something understandable and simple for a jury to follow. No one has suggested that any tribunal other than a jury should decide the issues in a rape trial. There are three issues: intentional penetration, lack of consent and lack of belief in consent. Why cannot a jury simply have those issues put in front of it for it to decide in regard to the particular individual and all the circumstances surrounding them? Why is it necessary to force its thinking in a particular channel?
	If there is, for example, evidence of violence at the time of or immediately before the act, it may well be difficult for the jury to come to any conclusion other than that the defendant did not believe in consent. The fact that he used violence is a strong indicator that he did not believe in it. Similarly, with threats of violence either to the victim, her children or any other person, it would again be very difficult for the defendant not to give evidence. He would have to do so, to give an explanation of why that was not an indication of his state of belief at the time.
	Again, in respect of the detention of the complainant at the time of the relevant act, I recall a case in which I was involved where a month's detention was alleged. However, a difficulty arose because the complainant had drawn her social security every week. Therefore, the suggestion that she was in prison was a little hard for her to carry through and the charge was dismissed.
	However, if a person is detained unlawfully, as a matter of common sense the burden passes to the defendant to give an explanation and to say why he believed that the woman was consenting, even though she was, for example, tied up or in a locked room, or whatever form of unlawful detention may have been employed. We have already discussed the question of the complainant being asleep or unconscious. That is a difficult area, as we have already found out. As for communication of consent, again the defendant has something to explain.
	Therefore, it seems to me that the clause seeks to follow the natural thought processes that a jury will have but it will force it into particular channels. The noble and learned Lord knows that I made an attempt to draft what I called a "route to verdict" in relation to this clause, based on the type of routes to verdict that we customarily receive in serious crime cases. What emerged at the end—I appreciate that that was before the amendment tabled by the noble and learned Lord—was a completely unworkable mishmash. It involved the judge having to direct the jury that it had to be sure in respect of the basic facts. Then the burden shifted over to the defendant—it was a balance of probability—and then back to the prosecution, who had finally to make the jury sure.
	As I believe I have demonstrated, when all that is put together, the members of a jury will be totally confused. If they are confused, they are likely to come to the wrong decision. At the bottom of it all, as we have seen with this Government's approach to mandatory sentencing, the trouble is that there is a mistrust of the judge and the jury. Instead of allowing these centuries-old institutions—if I dare to refer to judges as a centuries-old institution, although I believe that your Lordships follow what I mean—of the judiciary and the juries to get on with their job and to perform their constitutional function in the proper way, the Government want to interfere and put them through a maze, channelling their thoughts in a direction which the Government hope will reach a guilty verdict. I have said it many times and I repeat it: I do not believe that this legislation will improve the conviction rate, and I oppose the clause in its entirety.

Lord Campbell of Alloway: Having tabled many of the amendments and having supported those that I have not tabled, at this hour of the night I wish to take up very little time. First, I wholly agree with the criticisms made by the noble Lord, Lord Thomas of Gresford, about the hopeless muddle and the sort of labyrinthine maze without a single silken thread to intelligibility. How will a jury find its way? I express it in a rather short and classical way: I agree with the speech that the noble Lord made—and a very good speech it was.
	I have spoken to the subject of Clause 78 and Amendments Nos. 7, 18, 29 and 41. Indeed, I have given notice of my intention to oppose the Question that Clauses 78 and 79 stand part of the Bill. At this stage I need say no more than that. However, a gremlin has crept in. If one looks at the sequence of the Bill, one sees that my Amendment No. 11 to create a specific offence appears before Clause 3. It has been relegated out of order. I make no complaint. It is wonderful how much order has been achieved. However, by leave of the Committee—there are not many Members present—I shall speak to that now and make three points because in moving Amendment No. 2 I said that I would do so.
	First, as regards the specific offence in Amendment No. 11, is the current law so inadequate that it is requisite? It is a serious assault. It may or may not cause serious bodily harm. I would ask those who practise in this branch of the law now—it must be 50 years since I last practised in this branch of law on the western circuit, so I defer to noble Lords who may know a little more about it today—whether the law is so inadequate that we have to have a specific offence. Is it because there is a disparity between the occasioning of actual bodily harm and not occasioning it?
	Secondly, will the defence of "honest mistake", as I shall put it, still run?
	Thirdly—these are not questions to be discussed at length at this hour—is it a lesser offence than rape, as the noble Baroness and I believe to be true, for the reasons that she gave so eloquently? If it is should it have a sentence of, say, 10 years or 12 years, but certainly not a maximum sentence of life imprisonment?
	In a sense, Amendment No. 11 is a probing amendment. I do not know what the answer of your Lordships will be. I am not competent with my present knowledge to know what it should be. In due course, when this matter comes back on Report, I shall seek your Lordships' assistance, and, I hope, the assistance of my own Front Bench.
	The other amendments I shall speak to are: in Clause 3 Amendments Nos. 13, 14 and 17; in Clause 5, Amendments Nos. 23, 25, and 28; and in Clause 7, Amendments Nos. 35, 37 and 40. I mention those because they represent the structure of the amendments which I moved to Clause 1 carried into the Bill in these clauses.
	Each clause has a slightly different connotation. The new offence is placed before Clause 3 because that is where the specific offences are. The first specific offence is assault by penetration. One notices that there is no problem about oral sex there. Again one gets the difficulty of Section 78 or subsection (3) applying. It is the same structure. So I have struck at that. That seems fair enough. I have not dealt with the sentence of life imprisonment because I did not feel competent to do so. It might not be appropriate, but I do not know.
	Clause 5 deals with the sexual assault of touching and so on. I take the view that a term of imprisonment of 10 years on conviction on indictment reflects a lesser offence, but whether it is the right term I do not know. I am against an offence of this nature being tried on summary conviction. It is too serious. Certainly, something has gone wrong somewhere. One does not usually have an offence with a 10 years' maximum sentence tried by magistrates.
	Clause 7 deals with a very nasty and serious offence. I referred to it elliptically when I was dealing with Amendment No. 1. It is causing a person to engage in sexual activity. My Amendment No. 35 would remove the words "or (3)" in subsection (1)(d). In Clause 7(3) the "reasonable person" applies. However serious an offence—even the ultimate offence of rape—it cannot be tried in this abstract way, which is devoid of the actual intend of the accused.
	There again is the problem of the imprisonment, which is,
	"on conviction on indictment . . . not exceeding 10 years".
	That does not seem to be unreasonable. My Amendments Nos. 42 and 43 would delete Clause 7(5)(b) and (d). Oral penetration is of lesser gravity. These are all matters for discussion when those amendments are moved. However, as they were grouped together and stood in my name, I felt that I should deal with them and state my position, which is that on Report I intend to move Amendments Nos. 1, 2, 3 and 6. I have not yet decided what to do about the others because we have not yet discussed them.

Lord Lloyd of Berwick: Since the noble Lord has spoken to his Amendment No. 11, as I understand it, I should explain why I did not lend my name to it.
	I do not support Amendment No. 11 for two reasons, as I explained earlier. First, I do not accept the drafting—the amendment would be much better contained not as a separate clause but as a new subsection (1) to Clause 3. Secondly, I do not accept the suggested maximum sentence of 10 years. Although forcible sexual penetration of the mouth is, as I explained, in my view less serious than rape, it is nevertheless sufficiently serious to justify a life sentence. That is why I should include it in Clause 3, not as a separate clause.

Baroness Mallalieu: I am grateful that my noble and learned friend the Minister recognised so early in the Bill's passage the defects in the original Clause 78. Although I do not like to carp and should like to welcome what he has done, I am bound to say that I still have grave concerns about his alternative proposal.
	Before we broke for the dinner adjournment, when the noble Baroness, Lady Noakes, suggested that "a reasonable man" should be further defined and his characteristics set out in the Bill, my noble and learned friend replied that those matters could be left to a jury, who were well able to consider the circumstances and reach a conclusion. There has been a change during the past hour, because now we are told that the jury need a framework. The framework placed before us is very tightly drafted.
	As has been said, human behaviour does not fit neatly into categories. One thing that one learns from experience in the courts and elsewhere—in life itself—is that in human relationships, one must expect the unexpected. If the categories are to be drawn as tightly as at present, there will inevitably be unforeseen circumstances that may lead to injustice.
	Like the noble Lord, Lord Thomas, I am especially concerned about the shifting burden of proof. As we have heard, sexual cases are often difficult to prove because they involve one word against another with no independent or supporting evidence. I add to that that many of them now come before the courts not just many months but many years after the events are supposed to have happened. That makes it difficult to prove and establish the facts. In such circumstances, where we are dealing with a serious offence that carries a life sentence, it is wholly wrong to pass that evidential burden and those difficulties onto the defendant.
	As I understood my noble and learned friend, he said that his purpose through the clauses was to raise public perception that the law can deliver convictions in such cases and, if I paraphrase him correctly—as I hope that I do—to send a signal about what sexual behaviour is and is not acceptable. In reality, all the categories that he described in the new clauses are circumstances in which a jury is, one would have thought, almost certain to conclude that the defendant was well aware that the complainant did not consent. In other words, they are precisely the sort of cases in which a conviction is likely in any event.
	We are therefore once again producing what is in effect a public relations exercise, but is unlikely to lead to an increase in conviction rates. Indeed, for the reasons just given, it is likely to lead to difficulty and confusion because we are importing difficulties with the shifting burden of proof. It is all very well for us to say that it is easy for a jury to be told by a judge that one thing must be proved by one side and another by the other. It is not so easy to apply those burdens correctly when a jury is also dealing with complicated and difficult decisions about facts—often based on remarkably little evidence.
	So although I understand what my noble and learned friend is trying to achieve, and although we all want the public's confidence raised, I am concerned that the law must meet the needs of justice. I fear that the provisions, even as redrafted, are likely to have the opposite effect to that advanced by my noble and learned friend.

Lord Skelmersdale: As a non-legal onlooker, I am amazed. I referred earlier to trying to be a putative—to use the word of the noble Lord on the Liberal Democrat Benches—juror. In such cases, what does the noble Baroness, Lady Mallalieu, believe causes a jury to fail to convict? Is it because the jurors are not well instructed by the judge in the case? Is it because they do not believe the evidence given to them? Or is it because they do not comprehend the concept of the reasonable person—whether the future reasonable person suggested in the Bill—or the reasonable cause with which we have lived until now?

Baroness Mallalieu: I have not come across offences in every category, but I have been involved in cases comprising some of them. In such circumstances, it has not been my experience that juries fail to convict. They already convict in such circumstances, but we are now trying to import difficulties that may make that unlikely in the future. I say that because we are prescribing very closely circumstances that may not fit the bill.

Lord Skelmersdale: In other words, the noble Baroness trusts the jury.

Baroness Mallalieu: I certainly do. In this particular circumstance, it seems wholly wrong to set out what my noble and learned friend wants to do in a tight framework. It is much more important for the jury to look at the issues; that is to say, whether she consented, and, whether the defendant believed that she was consenting at the time. In a sense, that is a distraction. It puts on him a burden to deal with matters that the jury can already deal with under those headings.

Lord Thomas of Gresford: The noble Lord will surely appreciate that over quite a number of years public confidence in the courts has been diminished, not because of what has happened in the courts, but because of statements by successive Home Secretaries and politicians seeking votes and utilising their public prejudices in that way. It is far better for the Government to try to imbue in the public confidence in the judiciary and in juries rather than confidence in the drafters of this piece of paper. Those of us who have read it, and who know that it is clearly put forward by people with no practical experience, have no confidence in it at all.

Lord Skelmersdale: None the less, am I being naive in suggesting that the piece of paper to which the noble Lord, Lord Thomas of Gresford, refers—namely, this Bill—is the basis of the direction of the judge?

Lord Thomas of Gresford: It is not at the moment. It is left to the good sense of the jury to come to the proper conclusion. That is how it should be; it is where the trust should lie. The Bill says that we do not trust the jury to think rationally and reasonably. We have a democratic institution of 12 people taken from the community with no axe to grind and various points of view coming together to focus on the specific issue. They carry no baggage about the issue and are not case hardened. They look at the issue and decide what is just. A jury will not necessarily come to the same conclusion as a lawyer would reach. I am sure that the noble Lord, Lord Skelmersdale, would approve of the proposition that, in this field, lawyers' decisions may not be as good as those of a democratic institution—juries. I always have at the forefront of my mind the fact that the first things to go in any totalitarian regime are juries.

Lord Campbell of Alloway: My noble friend Lord Skelmersdale misunderstands the fundamental issue that we have been discussing. I know that he has been present most of the time.
	The fundamental issue is not whether the Bill, or paper, as he put it, would constitute, as he put it, the directions that the judge would give to the jury. The straight answer is that, if the Bill became law, it would—but only in the sense that the judge would have to direct the jury in law as to the meaning of Clause 78, to which we are all opposed because it would be unintelligible.

Lord Skelmersdale: I described myself as possibly being naive; I am not that naive.

Lord Lloyd of Berwick: I apologise for not having heard what the Minister said in moving the amendment. The real question is the extent to which we are prepared to trust the jury to do its work. I have tried a number of rape cases, and I never found any difficulty in explaining the law to the juries. Nor did I ever disagree with the verdict reached.

Lord Falconer of Thoroton: My sympathies are with the noble Lord, Lord Skelmersdale. I may have mis-noted it, but I think that the noble Lord, Lord Thomas of Gresford, said—I accept his analysis—that the three essential elements in a rape case were intentional penetration, lack of consent and lack of belief. The Committee must not hold either of us to that being universal, but that broadly summarises it.
	The noble Lord, Lord Thomas of Gresford, also said that, if the facts set out in Clause 78(3) were shown to be present, the burden passed, as a matter of common sense, to the defendant to show that he believed that the victim consented. That is precisely what this clause does.

Lord Thomas of Gresford: I did not say that. I said that the defendant had to give evidence about it in such circumstances. He certainly has to explain why he holds the belief that he does, if such circumstances arise. That does not mean that he has the persuasive burden.

Lord Falconer of Thoroton: One can understand why laymen might be confused. I have written down that, if the circumstances are present, the burden, as a matter of common sense, passes to the defendant. I accept that the noble Lord, Lord Thomas of Gresford, did not say that the burden, as a matter of common sense, passed to the defendant, but I understood that to be the thrust of what he said, and so did the noble Lord, Lord Skelmersdale.
	Is that approach too complicated? A judge might say to the jury, "If you are satisfied that intentional penetration took place; if you are satisfied that the victim did not consent; and if you are satisfied that, immediately before the act of penetration took place, the victim was subjected, to the knowledge of the defendant, to threats of violence, it is for the defendant to satisfy you on the balance of probabilities that he believed that she consented". That is what the clause amounts to.

Lord Campbell of Alloway: It is not like that. The defendant must satisfy the jury that his conduct was such as would match the conduct—or characteristics, if you like—of a reasonable man. It is no good saying that he must do anything else: under Clause 78, he must do that. How can he do it without evidence?

Lord Falconer of Thoroton: In the light of the amendments, the only effect of Clause 78 is that if the penetration without consent is established and one or other of the circumstances under Clause 78(3), the burden shifts to the defendant to establish, on the balance of probabilities, that he believed that the victim consented.
	As much as one tries to make that complicated, it is not. I utterly and completely repudiate what the noble Lord, Lord Thomas of Gresford, is saying; that this reflects an inability to trust the judges or the juries. It is far from it. We believe that the juries, properly instructed by a judge, are perfectly capable of understanding that question. I am supported in my approach by the fact that the noble Lord, Lord Thomas of Gresford, described what we are doing as, in effect, reflecting common sense. As the noble Lord said, in the circumstances that I described, surely the defendant has something to explain. If he has something to explain, let us place the burden, on the balance of probabilities, upon him. It reflects a straightforward shifting of the burden to where it should be.
	The noble Baroness, Lady Noakes, referred to workability. I explained how we think it should work. She must consider whether she thinks that that is workable. She said that it is a non-exhaustive list. But every single circumstance cannot be covered; we covered the main circumstances in relation to it.
	As regards conclusive presumption, the noble Baroness, Lady Noakes, said that there are "grey areas". She cannot envisage any circumstances in which relying only on third party consent could lead to the situation arising. Neither can we. If she can think of an example, obviously we shall consider the circumstances in relation to that.

Baroness Noakes: If neither I nor the noble and learned Lord can think of a situation, why do we need that part of the clause in the Bill?

Lord Falconer of Thoroton: It leads to justice because it ensures that the right result is achieved. I indicated that Clause 78(7) and (8) reflect the existing law. The possibility referred to by the noble Baroness was that consent would have been given, had it been asked for, if there had not been a deceit. I cannot believe that the noble Baroness wishes a possible defence to arise in rape cases in which a defendant might say, "Although she did not consent, had I put it in a slightly different way she would have consented". I do not believe that that is a sensible amendment to the law.
	The noble Lord, Lord Thomas, asked whether the Government have taken advice. Yes, indeed we have taken advice. We are advised that it is consistent with Article 6(a). I have so certified on the face of the Bill.
	The noble Lord, Lord Campbell, deals with a number of other points. As he telegraphed to us before supper, he was going to deal with his Amendment No. 11, which is about dealing with penetration of the mouth. We went through that issue in some detail earlier. The Government believe that it is right to treat penetration of the mouth as a form of rape. That is why that has been put in Clause 1.
	The noble Lord's approach involved making it a separate offence. With respect to the noble Lord, while we carefully considered that approach, we concluded, particularly on the basis of the evidence received by Setting the Boundaries, that the right approach was to make it part of rape.
	In the light of my remarks, I hope that the noble Baroness feels able to withdraw her amendment.

Lord Thomas of Gresford: Perhaps I may start again on the question of the burden of proof. As the noble and learned Lord knows, there is an evidential burden and there is a persuasive burden. It may be that the evidence of the Crown will require, in practice, the defendant to get up and give an explanation. That can be put into a statute formally. The evidential burden is placed upon the defendant and he must give some evidence.
	But that is unnecessary. All that must happen is that sufficient circumstances arise for the defendant to be called upon to give an explanation. When he gives his explanation, the prosecution must disprove it. The burden of proof is on them to make the jury sure that his explanation is untrue. That is all I was saying.
	The Bill raises shifting burdens of proof. If the jury are satisfied that there was intentional penetration, the second question is whether they are satisfied that the complainant did not consent. On a simple view, the judge would then say to the jury, which is provided for in Amendment No. 8, "Are you satisfied that he did not believe reasonably in her consent?". That is all.
	Under this Bill, the judge has to say to the jury, "You've got over the first two hurdles. Let's come to the third point. If certain circumstances are proved so that you are sure about them, the burden shifts over to the defendant to prove that he did believe".
	Let us take subsection (3)(a), for example. The judge would say to the jury, "Are you satisfied that any person was at the time of the relevant act using violence against the complainant or causing her to fear that immediate violence would be used against her? The prosecution has to prove that, members of the jury. Or if you are not satisfied about that, you might be satisfied under subsection (3)(b) that he was causing the complainant to fear violence. Are you sure about that? If you are sure about that, pause there for a moment. You've then got to consider this. It's for the defendant to satisfy you on a balance of probabilities. Now, hang on a minute, I've got to explain to you the difference between making you sure and satisfying you on the balance of probabilities. Has the defendant satisfied you on the balance of probabilities that he did believe that the complainant consented? If he has, well, he's not guilty. If he has not, you've then got to consider the matter as a whole. Finally—the burden of proof is on the prosecution—are you sure that all the ingredients of this offence are complete?".
	In other words, a number of stages are added on to the simple framework that I am suggesting in Amendment No. 8; namely, the three simple ingredients. Those stages are: asking the jury to consider additional factors; telling them they have to be sure about them; explaining the transfer of the burden of proof; explaining what that burden of proof is; and then giving them final directions about it all. How this will lead to more convictions or fewer acquittals, I utterly fail to understand.

On Question, amendment agreed to.

Lord Thomas of Gresford: moved Amendment No. 8:
	Leave out Clause 1 and insert the following new Clause—
	"SEXUAL VIOLATION
	(1) A person (A) commits an offence if he does an act of sexual violation by rape or by unlawful connection.
	(2) Sexual violation by rape is where A penetrates the vagina or anus of another person (B) with his penis—
	(a) without the consent of B, and
	(b) without a reasonably held belief that B consents to that penetration.
	(3) Sexual violation by unlawful connection is where a person (A) has sexual connection with another person (B)—
	(a) without the consent of B, and
	(b) without a reasonably held belief that B consents to that sexual connection.
	(4) "Sexual connection" means—
	(a) connection occasioned by the penetration of the genitalia or the anus of any person by—
	(i) any part of the body of any other person, or
	(ii) any object held or manipulated by any other person, otherwise than for bona fide medical purposes, or
	(b) connection between the genitalia of any person and any part of the mouth or tongue of any other person.
	(5) A person guilty of an offence under this section is liable, on conviction, to imprisonment for 7 years."

Lord Thomas of Gresford: I have already given enough of an introduction to this, blazoned in the course of our discussions today. Let me try to explain the purpose of a number of aspects of the issue.
	Amendments Nos. 8 and 10 must be taken together because, instead of the single charge of rape, I am suggesting in these two amendments that there should be two levels of what I have described as "sexual violation". Why do I do that? There are a number of practical reasons. The first is that, if you have a simple charge of sexual violation, there are fewer matters to be proved. Secondly, if a person is charged with aggravated sexual violation and the prosecution think it fit to accept a lesser charge, there is a considerable saving, in that the complainant is not required to give evidence.
	Earlier today the noble Baroness, Lady Howarth of Breckland, and other noble Lords spoke of how traumatic it is for the complainant, the victim, to have to describe her experiences in court. That is a matter which is always in the forefront of the minds of those advising a defendant charged with rape. If there is any way of avoiding calling the complainant and thus not subjecting her to the stress and trauma of giving evidence, then that route should be taken. So the two stages of rape that I propose are the simple offence followed by the aggravated offence. I shall go through those in some detail.
	I propose that the term "sexual violation" should be used rather than the word "rape". The label is important, as the noble Baroness, Lady Mallalieu, pointed out this afternoon. It is my view, based on experience, that the word "rape" itself places a heavy burden on the jury when considering the verdict. Jurors know that the crime of rape carries a heavy sentence. In cases involving date-rape, acquaintance rape or marital rape, they know that if they find the defendant guilty the level of sentence will be four or five years' imprisonment and possibly considerably more.
	If we were to adopt the New Zealand approach of describing the offence as sexual violation which can be committed in two ways, then something—I wonder what is the correct word, the stigma or the force—of the word "rape" would be removed from the consideration of the jury. It would be concerned with sexual violation either by rape or by unlawful connection. I have defined sexual violation by rape as penetration by A of the vagina or anus with the penis,
	"(a) without the consent of B, and
	(b) without a reasonably held belief that B consents to that penetration".
	Let us pause for a moment. If the words "reasonably held belief" are used, then, first, it is possible to get rid of the Morgan defence of "unreasonably held belief" and, secondly, it is possible to remove from the Bill altogether the provisions concerning the presumptions that we were discussing a moment ago and which we find so objectionable. So the words,
	"without a reasonably held belief that B consents to that penetration"
	provide a simple concept which can be explained to a jury. What it is important to note is that by using the phrase, A will not be compared with the hypothetical "reasonable person". Whether or not he shares those characteristics, the jury is asked to look at A; that is, to focus on the defendant. Did A believe that B consented? Did A believe that reasonably? Here the judge may say, "Members of the jury, the question of whether the belief was reasonable is a matter entirely for you. You can look at A, consider who he is and what is his background. You can consider what signals were given to him and what inquiries he may or may not have made. Then you can ask yourselves whether, in your view, the belief that A held in B's consent was reasonable. It is a matter for you".
	That is what has been described in New Zealand as an "objective/subjective" approach. In other words, it introduces the concept of what is reasonable but does not compare the defendant with the hypothetical "reasonable person"; the jury look at a person in the context of the offence alleged against him.
	So that is sexual violation by rape. Sexual violation by unlawful connection is framed in the same way. It is,
	"where a person (A) has sexual connection with another person (B) . . . without the consent of B, and . . . without a reasonably held belief that B consents to that sexual connection".
	Again, it is a simple matter on which to direct jurors and for them to understand.
	"Sexual connection" does not relate merely to oral sex, although, as the Committee will see, that is covered in the proposed new Clause 1 (4)(b). New subsection (4)(a) includes the penetration of the genitalia or the anus by,
	"any part of the body of any other person, or . . . any object held or manipulated by any other person, otherwise than for bona fide medical purposes".
	So that expands the concept of penetration to objects and to parts of a person's body other than the penis. As I say, new subsection (4)(b) refers to oral sex.
	For this unaggravated offence, I suggest a maximum sentence of imprisonment of seven years. Why seven years? Because, at the moment, simple rape carries a sentence of approximately five years. A maximum of up to seven years for simple rape without any aggravating features is consistent with the current level of sentencing.
	Amendment No. 10 refers to circumstances which aggravate the simple offence into something more serious and which can carry a sentence of life imprisonment. Subsection (1) states:
	"A person (A) commits an offence of aggravated sexual violation if he does an act of sexual violation by rape or by sexual connection"—
	that refers back to the previous new provisions—
	"in aggravated circumstances, and A knows that those circumstances existed".
	The aggravated circumstances I have suggested are taken from Clause 78. These include the use of violence or the fear of violence; the complainant being unconscious, unlawfully detained or disabled by an incapacity to communicate; deception; impersonation or the complainant being under the age of 13. If any of those aggravated circumstances apply, the more serious offence is committed, carrying a sentence of life imprisonment.
	I make no distinction between what I described earlier as "stranger rape" or "acquaintance rape" or "marital rape". The proposed clauses as drafted make no distinction. All that is necessary to bring in the more serious aggravated offence is that these aggravating circumstances exist. One can imagine, for example, that, in a case of stranger rape, violence or the fear of violence will be used. So immediately stranger rape will come into the heavier category.
	Some of the other aspects will always apply in cases of stranger rape in one way or another—they may also apply in cases of acquaintance rape and marital rape—and will increase the sentencing power of the court up to life imprisonment. That means that in order to find someone guilty of aggravated sexual violation by rape the prosecution must prove penetration; that it was without the consent of the complainant; and that it was without A's reasonably held belief that the complainant was consenting. That is simple, understandable and easy to explain. There are no presumptions, no shifting burdens of proof, no hypothetical reasonable persons with or without the characteristics of the complainant. We can trust a jury to understand this and bring home a correct verdict in the appropriate case.
	Amendment No. 19 would remove Clause 3. All that is required to deal with the sexual violation of a child under 13 is to have a new clause stating:
	"For the purposes of sections 1 and 2—"
	namely, sexual violation by rape or unlawful connection or aggravated sexual violation—
	"(a) a child under the age of 13 is incapable of giving consent; and
	"(b) the knowledge or belief of A as to that child's age is irrelevant".
	Again, those are simple, easily understandable concepts which can lead to justice being done. In addition, I oppose Clause 4.
	Amendment No. 22 deals with Clause 5 on sexual assault and would leave out subsection (1)(d) which provides that subsection (2) or (3) applies. Subsections (2), (3) and (4) deal with the reasonable person point and the Section 78 point that we discussed in relation to rape. All that would need to be proved for sexual assault is that A commits an offence if he intentionally touches another person, the touching is sexual, B does not consent to the touching, and, as Amendment No. 22 would specify:
	"(d) A does not reasonably believe that B consents".
	"Reasonably" implies an objective element but it still looks at the person and the circumstances and what could be expected to be his belief in those circumstances and having regard to who he is. Again, that would get rid of the Morgan defence but do it in an easily comprehensible and simplified way without all the difficult mechanisms contained in the Bill as drafted.
	The same amendment would be made to Clause 7, which is about causing a person to engage in sexual activity without consent. Amendment No. 34 would omit subsections (1)(d). Subsections (2), (3) and (4) contain the reasonable person test, the Section 78 presumptions and whether they are rebuttable or conclusive. The clause states that a person commits an offence if:
	"(a) he intentionally causes another person (B) to engage in an activity,
	(b) the activity is sexual,
	(c) B does not consent to engaging in the activity".
	Under Amendment No. 34, paragraph (d) would read:
	"A does not reasonably believe that B consents".
	If anybody thinks that we on these Benches are in any way trying to weaken the Government's thrust to get more convictions or whatever, they are entirely wrong. We are much more concerned to ensure that there are fewer acquittals when there should not be acquittals and fewer verdicts of guilty when there should not be verdicts of guilty. We believe that simplification and clarity will do that and not all these complicated mechanisms in the Bill which, as we have said from the beginning, have been drafted by people without practical experience of how the court works. I beg to move.

Baroness Walmsley: I support the group of amendments spoken to by my noble friend Lord Thomas of Gresford. They set out clearly a range of serious offences and label them in a way of which I believe the noble Baroness, Lady Mallalieu, would approve and that would be understood by the general public at large. The amendments would give the courts the tools that they need to prosecute the guilty and give them an appropriate sentence.
	I cannot compete with noble and learned Lords in your Lordships' House or with noble Lords who are also learned. I speak just as a woman who, like most women, has at some time feared that one day I could be raped, as can any woman. I considered the group of amendments we are discussing with those thoughts in mind. I believe that rape is rape. I also believe that if the person who is raped knows the rapist that is even worse as it constitutes an abuse of trust. I am satisfied that the set of offences so clearly described by my noble friend will ensure that those who are guilty of rape are more likely to be convicted and that they will avoid the possibility of erroneous convictions of the innocent.
	The purpose of the group of amendments is not to propose anything that changes our belief that rape is rape, whether or not the victim knows the rapist. However, they lay down a clear framework of law which will give the courts the tools for which the noble Baroness, Lady Mallalieu, has called and will achieve the objective of getting sound convictions of those who are genuinely guilty of rape. I believe that the amendments to which my noble friend has spoken will achieve that objective. That is why I support them.
	I hope that members of victim support groups who have considered my noble friend's amendments carefully will agree that their purpose is clear and that they would achieve what we all want; that is, genuine convictions of genuine rapists and an avoidance of unsound convictions.

Lord Campbell-Savours: The more I listened to the debate on Second Reading and the more I listen to this debate, the more I am convinced that the whole Bill should have been subject to prior scrutiny. There are areas of the Bill which any reasonable person listening to the debate must recognise will lead to difficulties in the courts.
	The proposals to which the noble Lord, Lord Thomas of Gresford, has just spoken clearly provide for a much simpler arrangement which would be far more easily handled by juries, would be far more popular with the legal profession and in my view—I am not a lawyer—would undoubtedly lead to more convictions of people who are guilty and to the release of more people who are innocent.
	The Government set up a working party which produced a report following a joint inquiry into the investigation and prosecution of cases involving allegations of rape. The report was produced jointly by the Crown Prosecution Service and Her Majesty's Inspectorate of Constabulary and was published in April last year. Why is it that in its 98 pages it never managed to address the issues we are discussing? The original remit made absolutely clear that it was to consider the high level of acquittal in rape cases. The remit is quite specific and states:
	"It was against this background that Her Majesty's Crown Prosecution Service Inspectorate and Her Majesty's Inspectorate of Constabulary were asked to hold a joint inspection, the aim of which was to analyse and assess the quality of the investigation and prosecution by the police and the crown prosecution service of allegations of rape, and to attempt to identify the causes of the decreasing conviction rate".
	Its main findings dealt with training, inadequate incident centres, a lack of suitable FMEs and their retention, inconsistency in recording of data, poor investigation, a lack of presentation expertise, poor victim support services, a deficiency in court procedures, inadequacy in provision of information to victims and inadequate guidance to prosecutors.
	When it should have considered the question of the crime itself, it had absolutely nothing to say in all its 98 pages. Furthermore, in the Government's response, the Action plan to implement the recommendations of the HMCPSI/HMIC joint investigation into the investigation and prosecution of cases involving allegations of rape, we find no reference whatever to the question of the crime.
	Why did those who were appointed to deal with those matters fail to address that absolutely central issue? I can only presume that it was because of political correctness. I am sorry to say it, but I see no other possible explanation. The project steering group had representatives from the Crown Prosecution Service, the medical profession, the Inspectorate of Constabulary, the Civil Service, policemen, the world of academia, assault and forensic centres and representatives of victims. However, there were no lawyers on the steering committee that conducted the inquiry, nor were there any representatives of juries. I do not know the name of the organisation that represents juries, but why were juries not represented? Why were they not asked why they believed that there was a high level of acquittal? I am sure that many of the arguments that we are having today would have surfaced, and would have been addressed in the course of the inquiry.
	We are about to produce legislation that will not work because it has not been fully considered. Will the Government, even at this late stage, take on board all the comments made today by all the eminent members of the legal profession? They are supported outside by great numbers of people, who are watching our proceedings and saying that we are making fools of ourselves in the way in which we conduct our business on these matters. My noble and learned friend has clearly mastered the Bill and understands it in detail, but he must reassure the House. He must tell us why he believes that there will be an increase in the rate of convictions and a reduction in the rate of acquittals. We need absolute assurances that that will happen and be told in detail why he believes that it will happen.
	In the joint report, there is an interesting section dealing with the review of cases. The recommendation from the joint committee suggests that prosecuters should,
	"insert a standard paragraph in instructions to counsel, requesting a written report in any case involving an allegation of rape which results in an acquittal . . . Any written report is used to complete an adverse case report, setting out the factual and legal reasons for the acquittal . . . The adverse case report is used to discuss with the police any lessons to be learned".
	In that recommendation, we may have the embryo of a report that might be used by Parliament in future in considering these matters. However, that is true only as long as those who draw up these comments and include them in these reports are prepared to talk about deficiencies in the law itself, particularly in relation to how juries treat rape. In a Question last November, the noble and learned Lord, Lord Ackner, described cases of date rape in which juries would not be prepared to reach a verdict of rape.
	However, in their response, the Government accepted the recommendation of the joint committee. They said that the,
	"CPS will draft a paragraph for instructions to counsel to reinforce the need for sufficient written information from counsel to inform the preparation of the adverse case report in such cases".
	As a timeframe of January 2003 was also given, I presume that that recommendation has been implemented and that that advice is being given so that the reports can be produced. Will my noble and learned friend comment on that and tell us whether the reports might include information about deficiencies in the law and perhaps lead us down the route so ably advocated by the noble Lord, Lord Thomas of Gresford?

Baroness Noakes: I should like first to comment on the remarks of the noble Lord, Lord Campbell-Savours, on pre-legislative scrutiny. We on these Benches, and I believe also those on the Liberal Democrat Benches, believe that that would have been an appropriate way to treat this Bill. As the noble Lord said, the further we proceed with this Committee, the more evident that fact will become. I tell the noble and learned Lord that it is not too late.
	I turn to Amendment No. 8, which was moved by the noble Lord, Lord Thomas of Gresford. I pay tribute to him for the extremely thoughtful way in which he approached this matter. He made an extremely impressive speech on Second Reading and we should be grateful to him now for his innovative approach. I am particularly attracted by the simplicity of that approach. I cannot tell him that we accept completely the nature of the amendment. I shall not presume to comment on the legal qualities of the new clause—that would be above my pay grade—but I should like to comment on a couple of aspects.
	In particular, I think that we are concerned about creating a lesser offence of rape and sexual violation. We would find it difficult to support the introduction by the back door—or indeed the front door—of a date rape offence. We accept, as was found in Setting the Boundaries, that acquaintance rape is just as serious for the victim as stranger rape. It is therefore difficult to believe that the right approach would be to treat it as a lesser offence. If there were a lesser offence, a seven-year maximum sentence would also begin to seem particularly low.
	As for the other major issue, we return to our old friend reasonableness. When I saw first Amendment No. 8, I was not clear whether it proposed an objective test or a subjective test. However, the noble Lord, Lord Thomas, has explained that it is an objective/subjective test. Every noble Lord asserts with great conviction that their particular version can be put to a jury. Those of us not accustomed to putting matters to a jury find it difficult to say whose version of how to present matters would be most easily understood and workable. I put that question mark over that aspect of the amendments from the noble Lord, Lord Thomas. Although I shall take a little convincing, I commend him on giving us a more innovative way of considering how to structure the offence in a way that juries can easily understand. That is how we will ensure conviction of the right people and not acquittal of the wrong people.

Lord Lloyd of Berwick: First, I want to say briefly that I agree with almost all the points made by the noble Lord, Lord Campbell-Savours. I also pay tribute to the work that the noble Lord, Lord Thomas, has put into his amendment. Of course I agree that we should all aim for simplicity, and the amendments certainly have that merit when compared with the Bill. However, they do not have any greater merit than the law as it stands.
	The noble Lord and I agree that, for a person to be convicted of a crime, he must have a guilty mind. In the law as it stands, the guilty mind consists either of knowledge that the woman is not consenting, or recklessness—in other words, indifference to whether or not she is consenting. What exactly is the mens rea in the offences that the noble Lord now proposes? I have some difficulty in identifying that state of mind.

Lord Falconer of Thoroton: I shall deal first with the points made by my noble friend Lord Campbell-Savours. In January 1999 the then Home Secretary set up a review. It took 14 or 15 months—that was quite right, because it consulted widely—and reported in April 2000. Setting the Boundaries was published and widespread consultation was sought in relation to it. In November 2002, a further document was published indicating the conclusions. The review has taken considerably over three years.
	One will not reach a point when lawyers are not able to debate a better way to deal with matters. I do not think that the right course is not to proceed now with introducing a Bill. Indeed, if one did, there would be very considerable dismay from a large number of people, such as the noble Lord, Lord Rix, who have pressed for such a Bill for a considerable time. If one thought that one would get more agreement from the lawyers, it would be worth waiting, but I expect that one would not.

Lord Campbell-Savours: I do not want to pre-empt my noble and learned friend's speech, but have the ideas put forward by the noble Lord, Lord Thomas, been considered before? When the Bill was drawn up, were people in the department thinking on those lines and considering producing legislation of that nature? Have they conceived of the ideas previously?

Lord Falconer of Thoroton: No one could have thought of the brilliance of the ideas of the noble Lord, Lord Thomas of Gresford. However, it is perfectly possible to produce such a structure. Five principles need to apply in constructing the provisions with which are dealing. The first is simplicity, and the second is the ability to be understood by the public. We agree with the noble Lord in relation to those two. The third is that the offence matches the level of criminality, a point made by the noble Baroness, Lady Walmsley. The fourth is that, in relation to those under 13, consent is presumed not to be present. The fifth is the objective element in relation to consent. The noble Lord agrees with the last two of those.
	Do the noble Lord's amendments amount to a better proposal than ours? If they do, we shall certainly consider them. Our proposal divides the sexual offences into three—rape, assault by penetration, and sexual assault. The last of those covers offences not covered by the first and second. The noble Lord's amendments amalgamate the existing offence of rape with some of the more serious elements of the existing offence of indecent assault. In that way, the new sexual violation offences would cover non-consensual penetration of the vagina or anus with the penis or any other object, and also sexual assault by contact between the mouth of one person and the genitals of someone else.
	I note the way in which oral penetration has been expanded in the noble Lord's amendments to cover non-penetrative activity such as cunnilingus. The maximum penalty for those offences would be seven years, unless the assault was aggravated by any of the factors listed in the proposed new Clause 2, including that the victim was a child under 13.
	Therefore, the noble Lord's offence does not have the simplicity of our offences in relation to what is rape and what is not. The noble Lord has amalgamated the offence of sexual violation by rape with that of any other form of unlawful connection. That is the way that he defines it. Therefore, first, his offence does not have simplicity in relation to severity, and, secondly, so far as concerns understandability, terms such as "unlawful connection" are not everyday language. Everyone is familiar with the term "rape", and terms such as "penetration" are also easily understood.
	I cannot see the merit of grouping together all these types of offending behaviour in this way as the result would be rather less clear; nor am I convinced that oral-genital touching is as serious as oral penetration, as would be the effect of Amendment No. 8, and that it should be brought within the same category as rape. Therefore, I do not believe that the scheme of the noble Lord, Lord Thomas of Gresford, is as good as the one proposed on grounds of either simplicity or understandability.
	I was surprised by the intervention of the noble Baroness, Lady Walmsley. Both she and the noble Baroness, Lady Noakes, said—I thoroughly agree with this—that acquaintanceship rape or rape by someone whom you know, even though it may not involve violence, can be just as disturbing and traumatic as stranger rape. That is not reflected at all in the approach of the noble Lord, Lord Thomas of Gresford. If the offence is not carried out under "an aggravating circumstance", then seven years is the maximum sentence, even though it is an acquaintanceship rape and causes as much damage.
	I have to agree with the noble Baroness, Lady Noakes. She will recall, as I do, that at Second Reading the noble Lord, Lord Thomas of Gresford, proposed that the right way to deal with the matter was for there to be a date rape offence—that is, an acquaintanceship rape offence—and another offence. I opposed that on the grounds that the noble Baroness, Lady Noakes, put forward this evening. By reducing the offence in the unaggravated circumstances, that is precisely what the noble Lord seeks to do.

Lord Thomas of Gresford: I said in terms that I make no distinction between date rape, stranger rape and marital rape. The offence comes within simple rape if it does not have aggravated circumstances. But if violence, fear or any of the other matters that I listed are used in a date rape, it is an aggravated offence carrying a life sentence. It is a misconception of my argument to say that Amendment No. 8 refers to date rape and that the others refer to something else. They are all treated equally. It is possible for a stranger rape not to involve aggravated circumstances. That is difficult to envisage because normally fear is involved, but it is possible. Certainly marital rape can take place in that way.
	I entirely agree with my noble friend Lady Walmsley, first, that rape is rape and is a serious offence and, secondly—I believe I used the words earlier today—that date rape can involve a breach of trust and be just as psychologically damaging as violence with a stranger. I have said that.

Lord Falconer of Thoroton: I want to make three points in relation to that. First, it appears that the noble Lord has changed his position since Second Reading. Secondly, how is the case to which the noble Lord's noble friend referred to be dealt with under his scheme? What happens where there is no violence but simply intimidation and terror as a result of a long relationship leading to damage? Seven years is the maximum sentence in relation to that. The noble Lord shakes his head, but I ask him to identify within which provision of aggravation it fits. My third point is that I am comforted by the fact that the noble Baroness, Lady Noakes, took exactly the same view as I did.
	Therefore, in relation to the third test, in my view the proposal is not able to deal with the degree of wrong that rape sometimes involves. In relation to proposition number four, the amendment deals with the under-13s.

Earl Russell: Can the noble and learned Lord take on board that if two couples—one who know each other and one who do not—do the same thing and are treated equally, this does not make a distinction between them? I support the amendment warmly. If it said what the noble and learned Lord thinks it says I certainly would not.

Lord Thomas of Gresford: The noble and learned Lord asked me specifically where there is reference to a long-term relationship. Subsection (2)(a) in Amendment No. 10 refers to using violence. Subsection (3) refers to a series of acts, which is exactly the same wording as in the Bill. Clearly, it covers exactly those circumstances.

Lord Falconer of Thoroton: The example I gave was one where the fear is such, where there is no immediate threat of violence, that the victim succumbs and feels totally violated by what has happened. It is about as serious an offence as it could be and it is not covered in those circumstances.
	On the fifth item—the objective element—as the noble Baroness, Lady Noakes, again accurately said, we both claim the same for our reasonableness test. We appear to be entirely in agreement about what the reasonableness test seeks to achieve. The noble Lord said, "Our test can be put simply to the members of the jury. They will be able to understand it and come to a conclusion". We say precisely the same for ours.
	We have set out in our provision a detailed explanation of how the test works. On this point we think that a clear statement in statute is particularly helpful for everyone: defendants and jurors alike. We want our new legislation to send a clear message that it is the defendant's personal responsibility to satisfy himself on the issue of consent. The way in which he meets that requirement will obviously vary from case to case, but it will always require him to do something positive. We believe that referring to the actions of the defendant is a helpful way of explaining this in law and is in line with the approach suggested by Setting the Boundaries. Like the noble Lord, we believe that the right approach is to leave it to the jury to decide the question. I pay tribute to the innovation and thoughtfulness of the noble Lord, Lord Thomas of Gresford, and to his change of position from his Second Reading speech. However, applying the five tests we have, with the greatest respect we believe that our provisions do this better.

Lord Lucas: I would be fascinated to hear the Minister's reply to the question asked by his noble friend concerning reports on trials which did not succeed.

Lord Falconer of Thoroton: I am not in a position to give a detailed reply. Perhaps I may write to the noble Lord. I apologise for not answering in the course of my speech.

Lord Skelmersdale: I realise that the Committee wants to adjourn as soon as possible. The noble and learned Lord was good enough to answer a question of mine at Second Reading at col. 880. He commented on the 10-year sentence for date rape, the maximum life sentence for rape and the conjunction between the two. Clearly, life does not always mean life in these particular circumstances. It would help the progress of the Bill to know whether the 10 years is to run consecutively in the Government's view, or whether it is in addition to the sentence.

Lord Falconer of Thoroton: I am afraid that I have completely failed to understand the question. Consecutive to what, and to what particular 10-year sentence does the noble Lord refer? I do not have before me the issue of Hansard to which the noble Lord refers. Perhaps I may write to him with an answer.

Lord Campbell-Savours: Does my noble and learned friend intend to go back to the department between now and Report and further consider the amendments moved by the noble Lord, Lord Thomas of Gresford? Will he consider them again with his officials to see whether, on consideration, they provide a better way forward?

Lord Falconer of Thoroton: We have had an opportunity to consider the amendments. I shall consider all that has been said during the debate. The problems with the proposals are those that I, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Noakes, have indicated. We shall certainly consider them. However, I should make it absolutely clear that at the moment there are some insurmountable hurdles in the way of it being a sensible proposal.

Lord Lucas: I urge one last time the virtue of the formulation of the noble Lord, Lord Thomas,
	"without a reasonably held belief".
	It is one simple phrase to replace two subsections and 40 words. As a potential juryman I find it much easier to understand. I am sure that many others would too.

Lord Thomas of Gresford: I am greatly heartened by the support of the noble Lord. I respectfully agree with him and have nothing to add.
	I have already dealt with the date rape point. I do not deal in Amendment No. 8 with date rape and in Amendment No. 10 with other types of rape. The aggravating circumstances do not relate to the particular way that rape occurs. If I said something different at Second Reading, then I have changed my position. I shall go back and read it because I do not recall ever being an advocate for a specific date rape charge. Perhaps I said something which caused the noble and learned Lord to believe that. He probably has it in front of him, but I shall check it and find out.
	The noble and learned Lord, Lord Lloyd of Berwick, asked me what would be the mens rea of my proposed offences. It would that A does not have a belief that B consents to the penetration, but it is subject to the test of reasonableness. In a number of jurisdictions in the Australian states, in New Zealand, in Canada and I believe in parts of the United States a test of reasonableness is applied to that belief. However, I have already indicated to the Committee—and I have been supported by every lawyer with hands-on experience of rape cases who has spoken today—that I do not know and have not come across any situation where an unreasonable but honest belief in the consent of the complainant has been urged as a defence. It is absolutely impossible to find out whether a jury has ever reached a conclusion about a defence that in my experience has never been urged. I cannot envisage circumstances where such a defence has succeeded in the past.
	So the Morgan issue is really a red herring. I do not think it ever had any practical utility. As I pointed out to the noble and learned Lord, Lord Falconer, during an earlier debate, Morgan was convicted. His belief was based upon being told by the husband of the complainant that if he went to make love to her, she would struggle and protest, but that that was all part of it. He was convicted. It was held that although it was open to him to hold a belief that was unreasonable, nevertheless his appeal would not succeed. Since that time—I repeat—the collective experience of those who have spoken today is that we do not know of such a defence succeeding.
	Who has the best "reasonable man" argument? The noble and learned Lord, Lord Falconer, thinks that we are talking the same language. We are not. He is talking about the hypothetical reasonable person with whom the defendant is to be compared. Before one can compare the defendant with that hypothetical reasonable person, one has to decide who is that hypothetical reasonable person, hence our earlier debate as to whether he shares the characteristics, or some of them, of the defendant. That is a different reasonable test from the one that I postulate of members of a jury looking at that defendant, considering all the circumstances and asking themselves a simple question: he tells us he had an honest belief and, looking at him, at the kind of person he is and at his intelligence and not comparing him with the hypothetical person, is that reasonable? If they think that it was, they will find him not guilty. If they think that it was unreasonable, as sure as daylight, as they do at present, they will find him guilty. That is a very different route, coming to a simple conclusion, from the convoluted trip around the presumptions—whether rebuttable or conclusive—set out in the Bill.
	I shall certainly return to the matter. I shall take into account the Minister's criticisms—perhaps a little touching-up of some of the wording would be in order—but I shall return to the matter on Report. I should be prepared to have further discussion with the Minister and his advisers on the topic if he thinks that that would be fruitful. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at twenty-six minutes past ten o'clock.